Memorandum submitted by London Councils
(Waste 18)
London Councils represents all 32 London boroughs,
the City of London, the Metropolitan Police Authority and the
London Fire and Emergency Planning Authority. London Councils
fights for more resources for London and for a fair deal for London's
33 councils.
The Transport and Environment Committee, TEC, provides
a range of high quality operational services. TEC aims to ensure
that London boroughs' concerns and best practice are taken fully
into account in the development and implementation of the whole
range of transport, environment and planning policies generated
by Government departments, the European Union, and the Mayor of
London. The committee deals with a wide array of issues, including
waste, climate change, air quality, water resources, bio diversity,
nature conservation, licensing and public protection.
EXECUTIVE SUMMARY
1. London Councils supports the more holistic
approach of Waste Strategy 2007 to the problems of waste management
in the UK and is pleased to see that one of the primary aims of
the strategy is to combat the potential climate change impacts
of waste. The shift of focus towards waste prevention is welcomed
as is the emphasis on sustainable waste management.
2. However, it appears that the strategy's targets
will be the responsibility of local authorities. Yet local authorities
have been given no further powers with which to effect change
over the purchasing behaviour. As it is, the high level target
for waste reduction is for the reduction of the residual waste
fraction, which does not necessarily translate into generating
less waste overall.
3. London Councils welcome the strategy's
position on localisation of waste services as opposed to centralisation.
Local waste management is in the right position to be able to
take full advantage of the most sustainable waste management option.
That is why London Councils particularly welcomes the strategy's
position that the current Greater London Authority Bill (now Act)
will strengthen London's ability to manage waste sustainably without
change to the current structures.
4. London Councils is concerned by the apparent
inconsistency in Government policy in the relationship of national
to regional strategies and their consequence in shaping local
authority waste services. London Councils considers that if Government
consider that London boroughs should act in general conformity
with the Mayor's municipal waste strategy, then the Mayor's municipal
waste strategy should be in general conformity with the national
waste strategy.
5. London Councils has concerns that the
strategy does not effectively address the issue of when materials
cease being waste and become useful commodities or resource. Failure
to review this single issue will present a huge barrier to the
development of new industries that could divert significant quantities
of waste from landfill.
6. London waste authorities are committed
to delivering excellence across the waste hierarchy, driving up
recycling and diverting waste from landfill, but are concerned
by the proposed replication of the current system whereby dry
recycling and composting get lumped together in the headline "recycling"
figure. London Councils advocates that the proposed indicator
and local targets should be for dry recyclables only. Additionally
London Councils does not support the Government's current proposals
to incentivise recycling.
7. London Councils supports the concept
of producer responsibility and recognises that the Strategy places
emphases on making this work. However, London Councils is disappointed
that the strategy continues to impose exceptionally heavy obligations
on local authorities by comparison with other sectors. It appears
that under the strategy, local authorities will continue to meet
substantial additional costs for separately collecting packaging
waste for recycling, therefore much of the cost of meeting "producer
responsibility" targets will continue to be met by local
tax payers rather than being reflected in the price of products.
8. London Councils welcomes the proposals
to maximise the environmental benefit of recovery of energy from
residual waste using a mix of technologies. However, WS2007's
position on separate collection and preferred technologies for
the treatment of food wastes is a concern. Proven technologies
such as incineration particularly with combined heat and power
recovery (CHP) may offer a more viable solution for the disposal
of residual waste including the food waste element. London Councils
resolutely believes that technology choice for waste treatment
must remain a local decision, to best fit local circumstances.
QUESTION 1:
How policies proposed by the Waste Strategy will
be implemented and the roles of those responsible for the production
and disposal of different classes of waste-including industrial,
business and household waste. Localisation as opposed to centralisation
of waste management
1. London Councils welcomes the publication
of the new waste strategy for England "WS2007" and supports
the more holistic approach to the problems of waste management
in the UK. The shift of focus towards waste prevention is welcomed
as is the emphasis on sustainable waste management and recycling
to cut carbon dioxide or methane emissions, thereby combating
climate change. However, it appears that these targets will be
the responsibility of local authorities. Yet local authorities
have been given no further powers with which to effect change
over the purchasing behaviour of residents, and thus have little
power to control the volume of waste they generate—it is
a matter of changing consumer culture, which is beyond the remit
of local authorities. Alongside this shift of focus towards waste
prevention, London Councils would have liked to see targets for
waste reduction at source. As it is, the high level target for
waste reduction is for the reduction of the residual waste fraction,
which does not necessarily translate into generating less waste
overall.
2. London Councils is disappointed that the strategy
continues to impose exceptionally heavy obligations on local authorities
by comparison with other sectors. While we welcome the stronger
role for local authorities, this is disproportionate to the strategy's
continued reliance on voluntary agreements for industry and business.
3. London Councils had lobbied for the Strategy
to be more prescriptive in allocating resources, regulatory burdens,
and fiscal penalties in a way that consistently minimised environmental
harm and promoted sustainability across all waste streams with
more equity among all those responsible for producing and managing
waste. As it is, the Strategy appears to continue the current
policy of imposing exceptionally heavy obligations on local authorities
by comparison with other sectors.
4. London Councils welcome the strategy's
position on localization of waste services as opposed to centralization.
Local waste management is in the right position to be able to
take full advantage of the most sustainable waste management option
including the reuse and the charitable sectors.
5. London Councils is concerned by the apparent
inconsistency in Government policy in the relationship of national
to regional strategies and their consequence in shaping local
authority waste services. Section 37 of the Greater London Authority
Act 2007: (Duties on Waste Collection Authorities) will replace
the current requirement for boroughs to exercise their waste functions
"having regard to" the Mayor of London's municipal waste
strategy with a new requirement to act in "general conformity".
London Councils considers the power in section 37 to be an unnecessary
elaboration and if Government consider that London boroughs should
act in general conformity with the Mayor's municipal waste strategy,
then Mayor's municipal waste strategy should be in general conformity
with national waste policy and the waste strategy. Given the Mayor's
well publicised position on various waste technologies, London
Councils is concerned that when the Mayor's municipal waste strategy
is reviewed it will be incompatible with the national waste strategy
particularly surrounding waste technologies. Therefore a London
authority, by acting in general conformity with the Mayor's strategy,
could be acting in conflict with the national strategy.
QUESTION 2:
The role for and implementation of regulations,
and their enforcement.
6. London Councils agrees with the strategy's
position that regulation has often not been sufficiently risk-based
or targeted. It has often been over prescriptive. London Councils
therefore welcomes the clarification of definitions and the rationalisation
of waste protocols and the proposals to simplify the regulatory
system. London Councils fully supports the Government's position
that it is vital that waste regulation is proportionate to the
health and environmental risks it seeks to manage, and that regulation
encourages, rather than discourages, waste prevention and the
recovery of resources from waste.
7. The Regulatory Impact Assessment (RIA) for
WS2007 concludes that although the strategy sets out key, new
policies and actions and sets the framework for further policy
development, it does not introduce any actions which would increase
regulatory burdens and WS2007 does not impose any new burdens
on local authorities. The RIA sets out a series of cost-benefit
analyses, where the costs relate to changes in waste management
and the benefits relate to greenhouse gas impacts and/or reductions
in levels of wider financial or public health risks. While this
approach may be sound, it may nevertheless be misleading as local
authorities who "volunteer" to drive forward the strategy's
objectives will have to make upfront monetary investments, with
the majority of the benefits accruing to "society as a whole".
Future policy proposals brought forward when implementing the
further policy development work outlined in WS2007 could increase
the regulatory burdens on local authorities and other sectors.
QUESTION 3:
The classification of waste
8. London Councils welcomes the strategy's
proposals to publish, for stakeholder consultation, draft updated
guidance on the interpretation of the definition of waste.
9. There are two important issues here:
A: Discrepancies with the regulatory definition
of waste
10. "Household Waste", "Commercial
Waste" and "Industrial Waste" are terms originally
defined in the Control of Pollution Act 1974 and now in the Environmental
Protection Act 1990 (EPA) with the supporting Controlled Waste
Regulations 1992 (CWR). The logic of the allocation of wastes
to different categories is not apparent, and the legal definitions
from the EPA can lead to argument. Inconsistency in the government's
interpretation of the definitions places waste authorities in
the untenable position of having to make significant investment
decisions based on a "best guess" of government thinking.
11. To add confusion, in setting targets/standards
on waste authorities, Government cannot even settle on using the
legal definition of household waste. It seems probable that many
waste authorities differ in their views of the interpretation
of this definition. This, of course, may well be reflected in
their reported figures for indicators and standards.
12. Besides the EPA terms, which are not
recognised in the EU, we have terms arising from EU Directives.
The Waste Framework Directive (WFD) currently defines waste as
"any substance or object which the holder discards or intends
or is required to discard". The major term, affecting waste
authorities is "Municipal Waste".
13. Furthermore the WasteDataFlow (a government
online database for local authorities to report their performance)
definitions of municipal and household waste add a further level
of interpretation of these regulations and judgements.
14. Defra has recently consulted on the
Interpretation of the Definition of Municipal Waste used in the
Landfill Allowance Trading Scheme (LATS) in England to which London
Councils submitted a response. London Councils response is attached
as Appendix A for your reference.
B: Waste as a commodity
15. If we are to achieve a more sustainable
economy in the UK then government needs to urgently address issue
of when something stops being waste and becomes a useful commodity
or resource. Failure to review this single issue will present
a huge barrier to the development of new industries that could
divert significant quantities of waste from landfill. Some of
the issues include:
— Refused Derived Fuel (RDF)/ Solid
Recovered Fuel (SRF) is currently still waste, so can only be
used in a Waste Incineration Directive (WID)—compliant facility
(which is much more expensive);
— Compost Like Outputs (CLOs) from Mechanical
Biological Treatment (MBT) and Anaerobic Digestion (AD) facilities
are still classified as waste;
— Secondary aggregates made from incinerator
bottom ash are, also still classified as waste even though they
qualify for exemption from the aggregates levy;
— on a smaller scale, there is the
question of whether community refurbishment, re-use and scrap
projects waste facilities need full waste management licensing
QUESTION 4:
The proposals for financial incentives to increase
household waste prevention and recycling
16. London Councils was pleased that Government
decided not to introduce a local variable waste charging; instead
providing the opportunity for local authorities to offer revenue-neutral
incentives for household recycling. However, London Councils'
conclusion in response to the Government's detailed consultation
paper was that the proposals as set out are unlikely to be workable
in London. Government must allow local authorities to develop
appropriate local solutions.
17. Incentives would seem a useful tool for authorities
wishing to encourage waste minimisation and recycling but needs
to be considered alongside a range of other measures. Overall,
London Councils is of the opinion that schemes set up along the
lines proposed by the consultation will not have sufficient impact
to change behaviour. Further, the costs will so far outweigh any
potential benefits to most London authorities that schemes will
be difficult to justify financially under the current climate
of increasing costs and real term reductions in Government spending
on local authority waste management. Many London authorities will
not see any real benefits for improving recycling performance
or for meeting their LATS obligations from implementing a scheme.
18. Whilst we welcome the Governments' proposals
for schemes to incentivise the right behaviour, the proposals
throw up a key issue for consideration in the design of any scheme.
Schemes designed to reward recycling ahead of minimisation could
result in householders placing non-recyclable items in recycling
bins to save money, leading to further costs up the chain for
waste authorities and waste re-processors. Schemes which reward
minimisation on the other hand may have little impact on recycling
rates whilst encouraging flytipping. Since authorities are measured
on their household waste recycling and composting performance
by weight of materials, the incentive remains to collect more
of the recyclable and compostable waste to achieve these targets.
19. London Councils supports the conclusions
drawn by the New Local Government Network in their recently published
white paper "How can we refuse? Tackling the waste challenge".
In which they conclude that some form of charging or incentive-based
scheme to encourage recycling is unlikely to provide the solution.
Concluding "if the real aim of any scheme is for the public
to recognise the costs of waste disposal and change behaviour,
the costs of implementation, enforcement and administration render
any incentive too small." London Councils therefore does
not support the Government's current proposals to incentivise
recycling.
QUESTION 5:
The role of composting
20. The Waste Strategy 2007 places a heavy
focus on composting as a vital mechanism for reducing impact of
waste on climate change. The issue likely to have the most significant
impact for local authorities is the continued inclusion of composting
in the strategy's new national recycling targets:
— recycling and composting of household
waste—at least 40% by 2010, 45% by 2015 and 50% by 2020.
21. London waste authorities are committed to
delivering excellence across the waste hierarchy, driving up recycling
and diverting waste from landfill, but London Councils has concerns
that the new targets proposed in WS2007 may not be deliverable
in London and similar urban areas. The key concern is the proposed
replication of the current system whereby dry recycling and composting
get lumped together in the headline "recycling" figure.
London Councils advocates that the proposed indicator and local
targets should be for dry recyclables only.
22. The danger of the National targets is
that some will see them as minimum standards to be achieved by
all local authorities, not an average of all. There is no doubt
that previous BVPIs for waste and recycling have been beneficial
in ensuring resources were committed to driving forward the sustainable
management of municipal and household waste by local authorities.
However, they must be tailored to the local authority, not one
size fits all.
23. The inclusion of composting creates
a false impression of the success of recycling activities, and
can lead directly to increases in the volumes of household waste
collected. Wherever possible, organic waste (and particularly
garden waste) should be composted at home, ensuring it does not
enter the municipal waste stream. Provision of free universal
collection of garden waste dis-incentivises residents from home
composting and has a negative environmental impact.
24. Any analysis of the ranking of local
authority recycling rates demonstrates that 70% of the top 20
performing authorities have a higher rate for composting than
for dry recyclables. The combined indicator thus fails to reflect
the need to increase biodegradable waste diversion without increasing
the total quantity of waste collected.
25. The inclusion of composting in the national
targets and local performance indicators is also prejudicial to
inner urban authorities, which cannot "generate" any
significant quantity of garden waste due to the nature of their
housing stock. This leads to a situation, where a London borough
with a good dry recycling rate but little in the way of green
waste appears to be outperformed by a shire district with poor
performance on dry recycling, but a universal, free-of-charge,
garden waste collection service. Inner city authorities will not
be able to collect garden waste for composting in a comparable
volume to rural authorities.
26. It would seem more sensible to measure
the tonnage of BMW landfilled, and even more useful to show this
as a proportion of each authorities LATS allowance.
27. London Councils does however recognise
that there are real opportunities for the separate collection
and treatment of the biodegradable elements of municipal and commercial
waste (food waste). But as set out below has concerns with Government's
prescription of a preferred treatment technology.
QUESTION 6:
The Government's approach to waste minimisation,
for example consideration of responsible packaging, including
examination of the different materials used and the potential
for reusable packaging and return schemes
28. With regard to Local authority performance
London Councils was disappointed by the strategy's position on
waste minimisation. While the strategy gives focus to waste minimisation
it continues the government's reliance on new national recycling
targets as a measure of performance. Recycling targets have a
disproportionate impact on the provision of waste services. The
drive to achieve further performance improvement in recycling
and composting the capital has been hampered by uncertainty over
governance arrangements.
29. London Councils supports the concept of producer
responsibility and recognises that the Strategy places emphases
on making this work, including proposals for statutory higher
packaging recycling targets. However, Government must ensure that
the problems of slow impact on waste streams and continual delays
in implementation experienced with current producer responsibility
arrangements will be taken into account when the system is extended,
for example to batteries and tyres.
30. Delayed implementation and inadequate regulation
create significant additional burdens for local authorities who
have to expand their services significantly without commensurate
financial support from Government. Local authorities have achieved
significant reductions in waste to landfill this needs to be complemented
by a focus on producers to reduce waste at source.
31. Under the strategy, local authorities
will continue to meet substantial additional costs for separately
collecting packaging waste for recycling, therefore much of the
cost of meeting "producer responsibility" targets will
continue to be met by local tax payers rather than being reflected
in the price of over packaged products. If the pricing of products
reflected the true packaging and end-of-life waste costs, producers
would then have a proper incentive to reduce these costs by eg
light-weighting, design for longer life etc. Consumers would then
shift towards purchasing products with lower waste impacts to
save money. An economic distortion would be removed and the framework
would no longer be subsidising the production of waste but helping
to minimise it.
32. London Councils is disappointed by Governments
continued reliance on voluntary action. London Councils believe
that voluntary agreements too often simply allow industry to avoid
significant behavioural change.
33. London Councils would rather have seen
statutory measures established to implement producer responsibility
legislation and with obligated businesses required to fund waste
authorities operating compensatory schemes. Companies obligated
to meet recycling achievements/targets for EU producer responsibility
streams must be clear about their responsibilities towards meeting
the national targets.
34. The UK appears to be comfortably meeting
their packaging recovery/recycling targets. As a result there
should be easily enough Packaging Recovery Notes (PRNs) or Packaging
Waste Export Recovery Note (PERNs), to satisfy demand from producers.
However, the generally comfortable situation for packaging producers
will mean PRN and PERN values are likely to remain relatively
low. This will limit producer investment in new recycling capacity
and may reduce the profitability of collecting packaging materials.
QUESTION 7:
The potential for the proposals in the Waste Strategy
to tackle the UK's contribution to climate change, in particular
through the reduction of methane emissions from landfill
35. London Councils is pleased to see that
one of the primary aims of the strategy is to combat the potential
climate change impacts of waste management.
36. However, London councils would rather have
seen greater emphasis on meaningful waste minimisation—which
by its nature would have had a greater impact on reduction of
greenhouse gas emissions in general and methane in particular.
QUESTION 8:
The promotion of anaerobic digestion for agricultural
and food waste.
37. London Councils welcomes the proposals
to maximise the environmental benefit of recovery of energy from
residual waste using a mix of technologies. But has concerns over
WS2007's position on separate collection and preferred technologies
for the treatment of food wastes.
38. WS2007 sets the separate collection and treatment
food waste as the next frontier in the management of municipal
waste by local authorities, with the emphasis on the potential
of anaerobic digestion as a preferred new technology for the treatment
of this waste stream.
39. London Councils recognise the opportunities
that exist for the separate collection and treatment of food waste
and some London waste authorities already provide this service
to their residents. For more London authorities to offer this
service there is a need for treatment facilities to manage this
waste stream. A number of anaerobic digestion facilities are already
planned in London however to provide sufficient facilities to
meet the level of treatment required there is a need for significant
investment from the government and the private sector to achieve
the capacity required.
40. That said, while food waste and anaerobic
digestion are possible areas for expansion of local authority
services—there are a number of other significant steps that
local authorities are taking to drive up landfill diversion and
increase collection of other recyclates. The potential for separate
collection of food waste across the whole of London (as in any
major city) maybe restricted due to housing stock, lack of storage
space and prohibitive costs (one London authority has calculated
this would be as high as £1m annually). Local authorities
already offer segregated collection of recyclables but space in
London is already at a premium. Local circumstances may prevent
or restrict multiple waste containers and the number of collections
services that can be offered by local authorities. Proven technologies
such as incineration particularly with combined heat and power
recovery (CHP) may offer a more viable solution for the disposal
of residual waste including the food waste element. This methodology
may have further Climate Change benefits in terms of reducing
the required vehicle movements. To make full use of this technology
however, Government will need to consider the application and
markets for the heat output from incineration.
41. London Councils is also concerned that
as with the new waste targets the proposal for separate collections
of food waste on a weekly basis is not backed up by proposals
for an additional revenue stream for local government to deliver
the service.
42. Within urban areas and particularly
cities such as London there is a significant potential for the
expansion of chargeable food waste collection and treatment from
waste generated by the expanding corporate hospitality sector.
Many London waste authorities are increasing diversion of commercial
waste for recycling. At least one London authority is already
offering a commercial food waste collection and others are known
to be considering a similar service. However, treatment facilities
are needed to manage this waste, and to provide these, certainty
of funding is required.
QUESTION 9:
The adequacy of the existing infrastructure, such
as energy from waste facilities with heat recovery; the UK's capacity
to process materials collected for recycling; and the potential
for Government action to encourage the most efficient novel technologies.
43. Since 2005 the London boroughs have
overseen public and private sector investment in waste facilities
totalling just under £0.5 billion, which has seen the capital's
waste management capacity increase by nearly four million tonnes.
Two new Mechanical Biological Treatment (MBT) plants at Frog Island
and Jenkins Lane have been opened by the East London Waste Authority
(ELWA) on behalf of the London boroughs of Barking and Dagenham,
Havering, Newham and Redbridge. These facilities deal with the
putrescible waste while also extracting further recyclable materials
from municipal waste collected and in 10 years the facilities
will have diverted 67% of East London's waste from landfill, and
helped East London achieve a 33% recycling rate. ELWA also have
planning approval for a local gasification plant that would convert
the solid recovered fuel from the biological materials recycling
facility (bio-MRF) into non-fossil fuel energy.
44. London Councils resolutely believes that
technology choice for waste treatment must remain a local decision,
to best fit local circumstances. There should be no policy preference
between the two types of waste treatment listed in the strategy
(incineration and anaerobic digestion) or the new or alternative
technologies as each technology has advantages and disadvantages.
Waste authorities should have the freedom to consult on and apply
the most suitable technology for their individual circumstances.
Waste authorities are however more likely to opt for proven technologies.
45. The Mayor of London has made his position
on certain technologies, particularly incineration, well known.
These include his unsuccessful attempts to stop the river-served
Belvedere Energy-from-Waste Plant for Western Riverside Waste
Authority, despite the Secretary of State granting the plant planning
permission; and his opposition to the West London Waste Authority's
plan to use extra capacity at a plant being built in Colnbrook,
Berkshire (which is under 200 metres from the Greater London boundary).
46. In both cases the Mayor's intervention
was over turned by the High Court. Both schemes are now going
ahead and will play an invaluable role in helping the boroughs
manage London's waste needs. London Councils supports the Waste
Strategy in that proven technologies such as incineration particularly
with combined heat and power recovery (CHP) offer a very viable
technology for the disposal of residual waste and must continue
to receive equal representation alongside other waste disposal
technologies. Paragraph 5 of our response in answer to Question
1 previously raised some of these same concerns about the potential
for the Mayor's strategy to be in conflict with National Strategy.
47. London Councils would have liked to
see the strategy giving greater support for the provision of more
smaller facilities as they are likely to be easier to procure
being easier to site, are more acceptable to communities and therefore
more likely to gain planning permission, and are more suited to
the new or alternative technologies such as gasification, pyrolysis,
and anaerobic digestion. Bigger contracts often act as barriers
to the smaller providers who end up being "costed out"
of the market. London Councils would like to see a move away from
the emphasis on PFIs to alternative procurement options that allow
local authorities more flexibility to apply the procurement models
most suitable to their circumstances but this will require a more
certain commitment on finance from government.
48. Current UK capacity for reprocessing
combined with market conditions, and the success of commercial
and local authority municipal recycling collections mean that
much of the UK's recyclate is through necessity exported overseas
for reprocessing. The lack of market security and uncertainty
in material supply act as a barrier to the development of waste
reprocessing infrastructure.
49. There is no doubt that the UK requires
more waste processing and treatment facilities, with a mix of
both new and proven technologies to achieve national targets.
Through the Single Regeneration Budget (SRB) programme, the London
Recycling Fund (LRF) and other programmes and projects a considerable
amount of work is being undertaken in the region to increase London's
waste treatment and reprocessing capacity (particularly working
towards the 85% self-sufficiency targeted set out in the London
Plan). However this infrastructure will take time to put in place.
CONCLUSION
50. The Government's and London local authorities'
efforts to further improve the capital's recycling rate have been
hampered by the Mayor's continuing calls for a single waste authority.
This market uncertainty disincentivises the private sector from
investing in London's waste management infrastructure.
51. We have repeatedly called on the Mayor to
put aside his attempts to increase his powers on waste and work
with us in boosting recycling and managing London's waste by helping
find real alternatives to landfill.
52. The Mayor's actions have led to uncertainty
which has constrained investment opportunities. The commitment
in the strategy to concluding this drawn out policy decision will
allow London to begin to invest appropriately, but note should
be made of the delay caused by the political processes involved.
That is why London Councils particularly welcomes the strategy's
position that the current Greater London Authority Bill (now Act)
will strengthen London's ability to manage waste sustainably without
change to current structures.
London Councils
October 2007
Appendix A
Defra Consultation on the interpretation
of the definition of municipal waste used in the Landfill Allowance
Trading Scheme (LATS) in England
Consultation Questions and London Councils
Response:
QUESTION 1:
Do you agree that the interpretation of the definition
of municipal waste used in LATS should be clarified?
During the earlier consultations by government
undertaken to set up the LATS scheme, local authorities repeatedly
identified potential conflicts and lack of clarity in the interpretation
of the definition of municipal waste, it is therefore no surprise
that the need for clarification remains. There is a clear inconsistency
between the definition of municipal waste in the WET Act and in
the guidance issued by Defra on this subject. London Councils
agrees with the need for clarification.
QUESTION 2:
Do you agree that the Government's preferred option,
to amend the definition of municipal waste in the WET Act, is
the most appropriate option?
London Councils has considered this question
very carefully and in some detail following consultation with
London waste authorities. London Councils is clear that it does
not support option C as set out in the consultation paper.
Of the alternatives, a number of London boroughs
believe that the misinterpretation by government of the interpretation
of the EU Directive, as set out below, is so fundamental that
option B should be adopted. This will allow all of the issues
to be resolved and remove any future risk of uncertainty of the
LATS scheme albeit that there may need to be some fundamental
changes to the scheme in the short term. These boroughs are concerned
that option C would put them, and the UK generally, at a disadvantage
in operating the LATS scheme by effectively extending significantly
the amount of waste subject to LATS.
Other boroughs accept that, as this issue needs to
resolved as quickly and as pragmatically as possible and that
there is a need to build upon the reduction in landfill already
achieved, an amended option C could be accepted by them as a practical
way forward subject to the issues around the meaning of "all
waste under the control of local authorities" being satisfactorily
addressed as detailed below.
CREATING AN
INCONSISTENCY BETWEEN
THE LANDFILL
DIRECTIVE AND
UK LAW THAT
WOULD NEED
TO ADDRESSED
UNDER OPTION
B
London Councils does not support the Government's
preferred option C as it stands. There appear to be a number of
potentially wrong assumptions made by government in the guidance
and interpretation issued for LATS. In London Councils opinion
"option C" is not correct in its interpretation of the
EU Landfill Directive, and will do little to clarify the issue
in dispute. Paragraphs 4.2 et seq. of the consultation
appear to suggest that Option C is offered largely to ensure the
least possible disturbance to the current administrative arrangements
associated with LATS. London Councils consider this to be far
from ideal
The lack of consistency between the definitions in
the legislation and the guidance has an obvious impact on the
ability of WDAs to classify what waste should fall within each
WDA's LATS allowances and, as a consequence, their ability to
assess whether they will be in a position to meet their targets.
There are also significant financial consequences for WDAs because
there is a wide difference in the volume of tonnage depending
on which definition is adopted, which influences whether WDAs
will reach their allocated targets with the potential to sell
any surplus allowances, or be required to purchase additional
landfill capacity from other WDAs, or risk having to pay penalties
under LATS.
The consultation document describes the Government's
preference for the "copy-out" procedure when transposing
EU Directives into UK law. The government copied out the Landfill
Directive definition of municipal waste into the WET Act:
(a) waste from households, and
(b) other waste that, because of its nature and
composition, is similar to waste from households.
However Defra's subsequent guidance interpreting
the Act appears to have taken a different approach, asserting
that the WET Act definition of municipal waste meant "all
waste under the control of local authorities be they waste disposal,
waste collection or unitary authorities".
The definition of municipal waste under the
guidance is therefore much broader. This means that, rather than
making a judgment as to what constitutes municipal waste in accordance
with the Landfill Directive and WET Act definition, all waste
handled by local authorities is required to be treated as municipal
waste. This interpretation includes various wastes that come into
the possession of local authorities that are not from households
and are not similar in nature and composition to waste from households.
This is not what the EU Landfill Directive requires.
Defra appears to acknowledge this error by proposing
in option C that the WET Act should be amended to the guidance
definition but that "municipal construction and demolition
waste" should be excluded from the WET Act's definition of
municipal waste—a proposal that itself is inconsistent with
Defra's assertion elsewhere that it has interpreted the existing
definition of municipal waste correctly.
Defra's proposal in option C to change the WET
Act would leave the UK in the undesirable position of imposing
upon itself obligations that the EU Landfill Directive had not
intended. Option C would create an inconsistency between the Landfill
Directive and UK law, in that the new definition of municipal
waste within the UK would be significantly wider than the one
set out in the Directive. This will only cause continuing confusion
about the objectives of the LAT Scheme and about the practical
arrangements for reporting on the various waste streams that come
into the possession of local authorities.
London Councils believe that the guidance is
incorrect in its interpretation and therefore to amend the WET
Act in line with the guidance seeks to perpetuate the confusion.
The Landfill Directive defines municipal waste by reference to
the nature or composition of the waste. Therefore, on any application
of the EU legislation, it is clear that municipal waste does not
refer to all waste in the possession or under the control of local
authorities, and a distinction must be made in the types of waste
sent to landfill in order to reflect the intention of the EU legislation.
Furthermore there is no enabling provision in
the WET Act or LATS Regulations empowering the Secretary of State
to alter the definition of municipal waste through the promulgation
of guidance.
It is also impossible to see how Defra's interpretation
could be written into section 21(3) of the WET Act without requiring
in effect the deletion of sub-paragraphs (a) and (b) (list above).
It is clear that the entire statutory scheme
(made up of primary and secondary legislation based on the EU
Directive) is predicated on the current definition in the Landfill
Directive and the WET Act. It therefore follows that amending
the legislation will not in itself lead to clarity but to greater
confusion.
It would be wrong in principle for the Government
to change legislation which is intended to, and does, accurately
import an EU Directive into English law, so as to introduce a
deliberate inconsistency between the two sets of legislation.
Government should have considered in more detail
the option to amend the guidance to reflect the correct definition
in the WET Act. However, it seems that Defra has chosen not to
suggest an amendment to the guidance because this would entail
more consideration as to the categories of waste required to go
to landfill.
We would agree that some judgment is required
in applying the WET Act definition. If Defra were concerned about
the complexity, some detailed guidance from Defra would assist
in ensuring certainty and consistency of approach. The fact that
some judgment needs to be undertaken should not be an impediment
to applying the correct interpretation as contemplated by the
EU legislation.
Therefore some of London Councils member boroughs
suggest that the government should adopt Option B and amended
its LATs guidance so that it is consistent with the Landfill Directive
and the LATS Regulations.
KEY ISSUES
TO BE
ADDRESSED IN
OPTION C: TO
AMEND THE
DEFINITION OF
MUNICIPAL WASTE
IN THE
WET ACT
As mentioned above some of London Councils member
boroughs consider that option C is not ideal but note that it
is the Government's preferred option. These boroughs recognise
that the LATS scheme is working and delivering a significant reduction
in waste to landfill and most local authorities have adopted a
pragmatic approach in accepting the Defra interpretation. London
is the second best region in the country for diverting waste from
landfill. London only needs to divert a further 5.6% of the waste
it currently sends to landfill to be within its 2009-10 allocation
of landfill allowances (England as a whole needs to divert 11%).
Therefore if Government chooses to pursue option
C to amend the WET Act definition of municipal waste then there
are key points which need to be considered. However, this should
not be taken as an endorsement of option C as it stands.
The major concern is that there remains uncertainty
over the definition contained in the LATs guidance to describe
municipal waste "to explicitly encompass all waste which
comes into the possession of or under the control of waste disposal
or waste collection authorities" which Government must clarify.
Specifically:
The fundamental question is what does Defra
mean by the phrase "under the control of"?
— does a local authority have "control"
of 3rd party commercial waste using a transfer station or disposal
site?
— does a Waste Disposal or Waste Collection
Authority have "control" on any or all wastes generated
by it's own local authority [buildings, premises, open spaces,
etc] even if that waste is managed by outsourced contractors and
service providers and does not use any of it's own authority provided
resources; and
— does a local authority have "control"
of waste generated on land owned by the authority, but situated
outside it's boundary in other authority areas.
Local Authorities, in the absence of clear guidance
from government, have assumed that the points above are not under
their control. Therefore should they now be included, local authorities
could face significant extra LATS costs. Government have stated
that they wish to minimise the change to the operation of LATS
and should therefore clearly state that these areas fall outside
the definition of municipal waste.
Further, within "option C" Government
is proposing that the WET Act should be amended such that "municipal
construction and demolition waste" should be excluded from
the WET Act's definition of municipal waste. If Government is
prepared to make concession with regard to this element of the
waste stream London Councils urge government to make further clarification
with in the guidance definition of municipal waste, to exclude
other types of waste that are neither from households, nor similar
in nature and composition to waste from households, that routinely
come into the possession of local authorities. These might include:
— industrial waste from boroughs;
— a proportion of commercial waste;
and
By way of further example a local authority
might well make arrangements with local businesses that involved
the authority taking possession of waste oils or solvents, or
industrial wastes from paint shops or dry cleaners, or waste from
stables. However these are not household wastes under the provisions
of the Environmental Protection Act 1990 and its associated Schedules;
nor are they similar in nature and composition to household wastes;
nor are they construction and demolition wastes. These wastes
are not municipal wastes in the terms set out by the Landfill
Directive. However they would be defined as municipal wastes in
Defra's proposed revision of the WET Act.
London Councils proposes that these waste streams,
in a similar manner to municipal construction and demolition waste
should not be included in local authority LATS returns, but would
remain "under the control of" local authorities. London
Councils would be willing to work with Government to clarify this
proposal.
London Councils
October 2007
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