Background
Going slightly under the radar to those outside of the waste sector were a series of new pieces of secondary legislation, which could have far reaching implications for district and unitary authorities.
Immediately prior to calling the election, the Department for Environment Food and Rural Affairs formally introduced their simpler recycling rules, harmonising the regime for waste collection by relevant Local Authorities across England.
Summary
In summary, the Environment Act 2021 and subsidiary Regulations, which are estimated to have a cost of around £1bn in transitional costs and £250m in on-going revenue cost, require English Waste Collection Authorities ("WCAs") to recycle household waste separately from other household waste. Effectively, WCAs will be required to collect plastic, paper and card, glass and metal separately from residual waste, weekly food waste, and garden waste (where requested) from households. Technically, a basic requirement for six recycling bins and a residual waste bin (or as some might point out, seven bins), albeit if the draft Separation of Waste (England) (No. 2) Regulations 2024 (see below) are eventually made, then certain waste streams may be combined, reducing this number to a potential minimum of three.
Regulations
Three key pieces of secondary legislation were laid in the form of Regulations, including:
- The Environment Act 2021 (Commencement No. 9 and Transitional Provisions) Regulations 2024, which came into effect on 17 May 2024 and gives effect to sections 45A to 45AZG for the purposes of the Environment Act 1990.
- The Separation of Waste (England) Regulations 2024, which were made on 20 May 2024, and set out the types of waste that are considered to be recyclable household waste and recyclable relevant waste.
- The Separation of Waste (England) (No. 2) Regulations 2024, which were laid on 22 May 2024, but will not become effective until a resolution of both Houses, which will now not happen until after 5 July 2024. The regulation provides some exemptions to the application of sections 45A to 45AZG of the Environment Act 1990.
The purpose of the Regulations are to both give effect to and supplement primary legislation by providing the required detail on what materials must be separately collected and by when.
The intention behind the changes are to reduce the negative environmental impacts that are otherwise caused by "…increasing both (i) the quantity of materials collected for recycling, and (ii) the quality of recyclate produced due to improved material segregation."
The new rules will largely be phased in over the next 3 years; with the first stage applying to relevant non-domestic premises with effect from 1 April 2025; the second stage (application of 45A(3) to 45A(8)) applying to collection of household waste from 1 April 2026; and the third stage applying to collection from micro-firms (e.g. those businesses with less than 10 FTEs) from March 2027.
For 35 WCAs as specified in the schedule to the Environment Act 2021 (Commencement No. 9 and Transitional Provisions) Regulations 2024, garden waste and food waste can continue to be collected together until a later date specified in the schedule.
Commercial implications
WCAs must now start to consider how they will ensure their waste collection arrangments comply with the new requirements.
New funding is expected to be provided for meeting these new burdens (i.e. the transition costs and the on-going operational costs) however, it is also expected that these may fall short of the full cost of acquiring new vehicles, containers and wider transition costs.
In addition, procuring new vehicles may be challenging given the current lead-in times, which can be up to around one year from placing an order; and that was before requiring all of the WCAs to do this in unison. Then there may be issues with depot capacity, which may not be sufficient for the new larger fleet.
As well as changing collection arrangements, WCAs may need to work with Waste Disposal Authorities ("WDAs") to vary existing disposal arrangements, as volumes and types of waste change. In some instances it may be necessary to consider whether new or modified treatment facilities are required and in such circumstances whether it is necessary to obtain planning, permitting and/or implement those changes through new construction projects.
Those will all need to be dovetailed with the relevant go-live dates.
Legal issues
The legal and practical implications of the new Regulations are varied and are likely to impact authorities in a number of ways.
Some WCAs (and some WDAs) will need to vary existing contracts (whether that is to require a contractor to procure the relevant assets and infrastructure needed or whether it is simply a change to the existing waste collection and disposal specification) and this raises the question of whether the modification in question can fall within the gateways provided for by Regulation 72 of the Public Contracts Regulations 2015. If it does, the authority may need to decide whether a modification notice needs to be published.
In some instances it may be that a modification cannot fall within the gateways provided for by Regulation 72 and an authority may need to take a risk based approach under Regulation 32 or potentially seek to procure a new service that is compliant with the relevant procurement regime. Note procurements started after 28 October 2024 will need to be conducted under the new Procurement Act 2023.
Whichever option is chosen, the relevant modification may also need to be negotiated and the resulting change documented. In most cases this will probably require the parties to conclude a deed of variation.
In some instances (such as where the WCA has an arrangement with a 'Teckal' body) it may still need to modify that arrangement, as well as decide on the mechanism and arrangements for the procurement of vehicles and other assets, which are likely to exceed the relevant threshold.
Any new waste collection procurements that have just commenced or are mid-flight will also need to have regard to these changes and ensure that practical solutions are duly built-in t deliver a roll-out in line with the statutory requirements.
Finally, from a practical point of view, the start dates are perhaps a little unusual for waste collection, as the requirements commence on a Tuesday, a Wednesday and a Thursday, all of which may be slightly inconvenient for a WCA.
