WASTE RECYCLING
MARCO MUIA BSc (Hons) MSc MCIWM, Managing Director
at Oaktree Environmental Limited. Marco specialises in all aspects of waste planning and regulation consultancy. He also holds the level 4 COTCs for Hazardous Waste Treatment and Transfer.
01606 558833 |
marco@oaktree-environmental.co.uk Twitter @wastechat.
Business Clinic
ENVIRONMENTAL
It’s only guidance...
IF I had a pound for every time I hear the words ‘it’s only guidance’, I would have at least a tenner. Joking aside, there could not be a better time to take a quick look at the role of guidance and its relationship with legislation.
Guidance is supposed to be there to help and looking at dictionary definitions supports that assumption i.e.
• • •
advice or information aimed at resolving a problem or difficulty, especially as given by someone in authority.
help or advice that is given to somebody, especially by somebody older or with more experience the act or process of guiding.
In our industry it has never been easy to be familiar with the mountain of legislation and guidance but where there is primary or secondary legislation that applies to your activities you should always consult the law and the guidance together and seek clarification if the two appear contradictory. It’s always helpful if there is case law to clarify a situation but that is in short supply for day-to-day waste problems.
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Legislation is never perfect; it represents a compromise where every possible outcome cannot be foreseen, which is why it is constantly reviewed as practitioners grapple with interpretation in practice and through the courts. Guidance often plugs the gaps and on occasion can provide a more authoritative interpretation if that guidance is statutory, such as a code of practice.
For example, the Waste Duty of Care Code of Practice (November 2018 version in England and Wales) is admissible as evidence in the courts and can be consulted when answering questions relating to a case. It does contain some strict requirements which could be argued go beyond the primary legislation (the Environmental Protection Act 1990 - Section 34). Section 3.2 of the code states:
“If you suspect that someone does not have an appropriate environmental permit or registered exemption, or that they are breaching a condition of their permit or exemption, you must not give them your waste or take waste from them. You should report suspected illegal activity or breaches to permits or exemptions to the EA or NRW.”
This paragraph appears to be mandatory but still requires interpretation where I have highlighted. What happens if you want to take waste to a site that has not submitted its waste returns on time, which is a breach of a condition in most permits? They may still be able to safely deal with your waste and comply with the duty of care so common sense has to apply and it is unlikely that you would ever be prosecuted for taking your waste to the site. If the site was overflowing with waste then you know what the answer is.
The second sentence suggests what you should do but does not make it an offence to fail to report illegal activity to the regulator. This is closer to what many people understand guidance to be in that it is there to help but does not have to be followed in every case.
It is the job of regulators to enforce the law in a proportionate manner, using guidance as a tool and to act within their statutory powers. As always, the courts have the final say.
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