Waste Transfer Notes

The need for a written description of a waste to accompany every waste movement so that the person receiving it knows what it is and can deal with it appropriately has been one of the four fundamental duties of the Waste Duty of Care since it was introduced into legislation in s.34 of the Environmental Protection Act 1990. Over the years, this gradually evolved into a requirement for (in England and Wales) a “Waste Transfer Note” or “WTN”.

WTN 500Detailed requirements for the content of a WTN were brought up to date in Regulation 35 of The Waste (England & Wales) Regulations 2011 (SI 2011/988), all of which was incorporated onto the standard form produced by the Environment Agency and readily available online. However, the use of this form was not mandatory providing that any alternative WTN form contained all of the information required by Regulation 35. This permitted larger waste companies to produce their own versions of it for issue to their customers whenever waste was collected from site.

On 6th April 2014, s.6 of the 2014 amendment to the Waste Regs (SI 2014/656) replaced “transfer note” in Regulation 35 with “written information”, permitting a much wider range of documentation than formal WTNs, such as invoices or skip exchange notes – however the need to provide all the Reg.35 information remains.

At the same time “edoc“, the “electronic Duty of Care” online waste documentation and tracking system, has come into use, permitting companies to register their waste activity online, and to register and track waste movements electronically without the need for paper documentation.

Overall, the relaxation of WTN requirements permit a far more flexible approach to proving compliance with the waste Duty of Care, but does not remove any of the obligations on waste producers to be able to demonstrate and document compliance with the Duty if challenged by the Regulators, including provision of all the information required by Regulation 35 that would previously have been documented on a formal Waste Transfer Note.

Acquittal – Waste Duty of Care

I recently came across a newspaper article from 2011 about a signage company who had been charged with Waste Duty of Care offences. In a nutshell, after unpacking a sign, the company had given a box with the company’s name on it to a passerby who said they could used it. The box later turned up in a lay-by full of rubbish and the company were charged. Investigation by the council later revealed that the waste obviously didn’t belong to the company, but the council persisted with the prosecution on the basis that the company had failed to dispose of the box properly.

Fortunately, the judge showed a great deal of common sense declaring the case to be “a monumental waste of public time and money” (about £15,000!) and threw out the case by directing the jury as follows:

“This company is charged with failing to take reasonable measures to ensure that the transfer of controlled waste from its premises was only to an authorised person. The first question is therefore were the cardboard boxes in question waste? Packaging such as boxes received by a company like Electrosigns is not waste when it is delivered to the company. Nor do boxes become waste as soon as the contents are removed. If a company chooses to keep and re-use boxes, they remain the property of the company and an asset. If the company keeps boxes for its own use but then chooses to give or sell boxes to another party that is not discarding them.”

What’s important about this? Simply that it sheds light on a grey area regarding when something becomes waste in the first place. Effectively, the judge decided that giving the box to someone else who could use it didn’t mean that the company had “discarded” the box so that it became waste, and as it wasn’t waste, they didn’t commit a Waste Duty of Care offence. (Think about all the empty boxes supermarkets give away to customers to pack what they’ve bought …!!)

I can’t help wondering how much use the construction industry could make of this this “asset rather than waste” principle when dealing with surplus materials at the end of a job. Under this ruling, it appears that as long as you regularly keep, give away or sell surplus usable materials at the end of the job (ie regard them as a useful “asset” rather than useless “waste”), they’re not waste and so waste legislation such as the Duty of Care doesn’t apply to them, making far easier to get them back into productive use (and which, incidentally, also fulfills your Duty under the Waste Hierarchy … ie to prevent waste occurring in the first place …).

(Snaresbrook Crown Court, 21 September 2011)