5.8.2 Legislation

34 Duty of care etc. as respects waste

6 (1)Subject to subsection (2) below, it shall be the duty of any person who imports, produces, carries, keeps, treats or disposes of controlled waste or, [F1as a dealer or broker] , has control of such waste, to take all such measures applicable to him in that capacity as are reasonable in the circumstances—

7 (a)to prevent any contravention by any other person of section 33 above;

8 [F2[F3(aa)to prevent any contravention by any other person of regulation 12 of [F4the Environmental Permitting Regulations] or of a condition of an environmental permit;]]

9 (b)to prevent the escape of the waste from his control or that of any other person; and

10 (c)on the transfer of the waste, to secure—

11 (i)that the transfer is only to an authorised person or to a person for authorised transport purposes; and

12 (ii)that there is transferred such a written description of the waste as will enable other persons to avoid a contravention of that section [F5or regulation 12 of [F6the Environmental Permitting Regulations], or a contravention of a condition of an environmental permit,] and to comply with the duty under this subsection as respects the escape of waste.

13 [F7(1A)It shall be the duty of any person who is responsible for the management of extractive waste to take all such measures applicable to him in that capacity as are reasonable in the circumstances —

14 (a)to prevent any contravention by any other person of section 33 above;

15 (b)to prevent any contravention by another person of regulation 12 of [F8the Environmental Permitting Regulations] or of a condition of an environmental permit; and

16 (c)to prevent the escape of the waste from his control or that of any other person.]

17 (2)The duty imposed by subsection (1) above does not apply to an occupier of domestic property as respects the household waste produced on the property.

18 [F9(2A)It shall be the duty of the occupier of any domestic property in England [F10or Wales] to take all such measures available to him as are reasonable in the circumstances to secure that any transfer by him of household waste produced on the property is only to an authorised person or to a person for authorised transport purposes.]

19 (3)The following are authorised persons for the [F11purposes of subsections (1)(c) and (2A)] above—

20 (a)any authority which is a waste collection authority for the purposes of this Part;

21 (b)any person who is the holder of a waste management licence under section 35 below or of a disposal licence under section 5 of the Control M1of Pollution Act 1974;

22 (c)any person to whom section 33(1) above does not apply by virtue of regulations under subsection (3) of that section [F12or by virtue of regulations under section 2 of the Pollution Prevention and Control Act 1999] ;

23 (d)any person registered as a carrier of controlled waste under section 2 of M2 the Control of Pollution (Amendment) Act 1989;

24 (e)any person who is not required to be so registered by virtue of regulations under section 1(3) of that Act; and

25 (f)a waste disposal authority in Scotland.

26 F13[(3A)The Secretary of State may by regulations amend subsection (3) above so as to add, whether generally or in such circumstances as may be prescribed in the regulations, any person specified in the regulations, or any description of person so specified, to the persons who are authorised persons for the purposes of [F14subsections (1)(c) and (2A)] above.]

27 (4)The following are authorised transport purposes for the purposes of [F15subsections (1)(c) and (2A)] above—

28 (a)the transport of controlled waste within the same premises between different places in those premises;

29 (b)the transport to a place in Great Britain of controlled waste which has been brought from a country or territory outside Great Britain not having been landed in Great Britain until it arrives at that place; and

30 (c)the transport by air or sea of controlled waste from a place in Great Britain to a place outside Great Britain;

31 and “transport” has the same meaning in this subsection as in the Control of Pollution (Amendment) Act 1989.

32 F16[(4A) For the purposes of subsection (1)(c)(ii) above—

33 (a)a transfer of waste in stages shall be treated as taking place when the first stage of the transfer takes place, and

34 (b)a series of transfers between the same parties of waste of the same description shall be treated as a single transfer taking place when the first of the transfers in the series takes place.]

35 (5) The Secretary of State may, by regulations, make provision imposing requirements on any person who is subject to the duty imposed by subsection (1) above as respects the making and retention of documents and the furnishing of documents or copies of documents.

36 (6)Any person who fails to comply with the duty imposed by subsection (1) [F17, (1A)][F18or (2A)] above or with any requirement imposed under subsection (5) above shall be liable—

37 (a)on summary conviction, to a fine not exceeding the statutory maximum; and

38 (b)on conviction on indictment, to a fine.

39 (7)The Secretary of State shall, after consultation with such persons or bodies as appear to him representative of the interests concerned, prepare and issue a code of practice for the purpose of providing to persons practical guidance on how to discharge the duty imposed on them by subsection (1) above.

40 (8)The Secretary of State may from time to time revise a code of practice issued under subsection (7) above by revoking, amending or adding to the provisions of the code.

41 (9)[F19A] code of practice prepared in pursuance of subsection (7) above shall be laid

42 [F20(a)]before both Houses of Parliament [F21; or

43 (b)if it relates only to Scotland before the Scottish Parliament.]

44 (10)A code of practice issued under subsection (7) above shall be admissible in evidence and if any provision of such a code appears to the court to be relevant to any question arising in the proceedings it shall be taken into account in determining that question.

45 (11) Different codes of practice may be prepared and issued under subsection (7) above for different areas.

Fixed penalty notices: offences under section 34(6) relating to section 34(2A): England

(1)This section applies where it appears to an enforcement authority in England that a person has failed to comply with the duty relating to the transfer of household waste in section 34(2A) in England.

(2)The authority may give to that person a notice offering the opportunity of discharging any liability to conviction for an offence under section 34(6) by payment of a fixed penalty.

(3)An authority may not give a person a notice under subsection (2) if such a notice has already been given to that person (whether by the same or another authority) in respect of the same offence.

(4)Where a waste collection authority (A) gives a notice to a person under subsection (2), A must, at the time of giving the notice—

(a)give the Environment Agency a copy of the notice; and

(b)where it appears to A that the failure to comply with the duty in section 34(2A) took place in the area of another waste collection authority (B), give B a copy of the notice.

(5)Where the Environment Agency gives a notice to a person under subsection (2), the Agency must, at the time of giving the notice, give a copy of the notice to the waste collection authority in whose area the failure to comply with the duty in section 34(2A) took place.

(6)Where a person is given a notice under subsection (2) in respect of an offence—

(a)no proceedings may be instituted for that offence before the end of the period of 14 days following the date of the notice; and

(b)the person may not be convicted of the offence if the fixed penalty is paid before the end of that period.

(7)The fixed penalty payable to an enforcement authority under this section is—

(a)the amount specified by the authority in respect of the offence; or

(b)if no amount is specified by the authority, £200.

(8)The amount specified by an authority in respect of the offence under subsection (7)(a) must not be less than £150 or more than £400.

(9)The enforcement authority to which a fixed penalty is payable under this section may make provision for treating it as having been paid if a lesser amount of not less than £120 is paid within the period of 10 days following the date on which notice is given under this section.

(10)A notice under this section must give such particulars of the circumstances alleged to constitute the offence as are necessary for giving reasonable information of the offence.

(11)A notice under this section must also—

(a)state the period during which, by virtue of subsection (6)(a), proceedings will not be instituted for the offence under section 34(6);

(b)state the period during which, by virtue of subsection (6)(b), payment of the fixed penalty will discharge any liability to conviction for the offence;

(c)state the amount of the fixed penalty;

(d)state any lesser amount payment of which, by virtue of subsection (9), is treated as payment of the fixed penalty, and the period for payment of the lesser amount;

(e)state the permissible methods of payment;

(f)explain that—

(i)the notice contains an offer to discharge liability to conviction for the offence by payment of a fixed penalty and that the person is not required to accept that offer; and

(ii)the person is entitled to make representations to the authority about the allegations contained in the notice;

(g)state the address to which the person may send any representations;

(h)explain that, by virtue of subsection (3), an authority may not give a person a notice under this section if such a notice has already been given to that person (whether by the same or another authority) in respect of the same offence;

(i)state which other enforcement authorities the authority has sent a copy of the notice to in accordance with subsections (4) and (5).

(12)An enforcement authority may authorise in writing a person (an “authorised officer”) to give a notice under this section on its behalf.

(13)An authorised officer may require an occupier of domestic property to give the occupier’s name and address if the officer proposes to give the occupier a fixed penalty notice.

(14)A person commits an offence if the person—

(a)fails to give a name or address when required to do so under subsection (13), or

(b)gives a false or inaccurate name or address in response to a requirement under that subsection.

(15)A person guilty of an offence under subsection (14) is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(16)In any proceedings a certificate which—

(a)purports to be signed on behalf of the chief finance officer of the enforcement authority; and

(b)states that payment of a fixed penalty was or was not received by a date specified in the certificate,

is evidence of the facts stated.

(17)In this section—

· “chief finance officer”, in relation to an enforcement authority, means the person having responsibility for the financial affairs of the authority;