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Site waste management plans for large construction sites to be repealed, Government confirms

Out-Law News | 06 Sep 2013 | 10:07 am | 3 min. read

Large construction sites will no longer need to have a site waste management plan (SWMP) in place before work can begin, the Department for Food, the Environment and Rural Affairs (Defra) has confirmed.

The Government will repeal the SWMP Regulations from October, despite the construction industry's mixed response to its consultation on the proposals. A summary of responses (22-page / 69KB PDF) indicated that although 49% backed the Government's plans to repeal the legislation in response to its 'Red Tape Challenge' regulatory review, 49% wanted the requirement to be retained.

In addition, 73% of the respondents said that they expected to still use SWMPs on projects. Respondents included contractors, private businesses, health and safety officers, local authorities and project clients.

Environmental law expert Eluned Watson of Pinsent Masons, the law firm behind Out-Law.com, said that SWMPS are a "useful and successful tool" alongside other legal measures to tackle waste, such as the landfill tax. She said that the Government's announcement was "disappointing".

"The repeal of the SWMP Regulations will only lead to a small regulatory burden being removed, and some question whether the consultation process could have also looked at how the existing Regulations could have been improved rather than repealing them in their entirety or retaining them in their current form," she said. "It could be argued that an opportunity has been lost to improve and extend the SWMP regime."

"For most companies, the use of SWMPs has become best practice embedded as best practice and enables cost savings through better waste management whilst increasing a company's environmental credentials. On a positive note, it is hoped that the deregulation of SWMPs will allow greater flexibility to businesses as to how SWMPs are used and for new innovative practices to evolve that are not stifled by having to comply with rigid legal requirements," she said.

The fact that  many respondents will continue to use SWMPs even after their repeal, whether in full or simplified form, is "encouraging", she said.  She also noted that SWMPs would be required for certain projects in order to comply with the BREEAM environmental standard and the Code for Sustainable Homes.

Since 2008, the SWMP Regulations have required construction projects in England worth over £300,000 to have a SWMP in place before work begins. The plan must include details of the types of waste that will be produced at the site  and how it will be reused, recycled or disposed of; as well as details of where the waste is being sent to.

There are no similar requirements in place for projects in Scotland or Northern Ireland, however the Welsh Government has recently proposed making SWMPs a requirement for construction and demolition projects in Wales. If the Welsh Government decides to go ahead on this basis, the requirement for SWMPs would be introduced from next year. Five respondents to the Defra consultation said that this would lead to "confusion" and that the regime should be "aligned across borders".Of those in favour of repealing the SWMP Regulations in England, 26 respondents cited the administrative burden and bureaucratic nature of SWMPs as a reason to do so. Lack of engagement with designers and architects was the main weakness of the Regulations for 24 respondents, who suggested that plans were generally passed onto contractors once a building had already been designed. Doing so meant that the plans could not be used to minimise the chance of the waste arising in the first place, and so achieve the greatest savings, Defra said.

"SWMPs tend to be produced after the design phase, and so only had a limited effect on [reducing the amount of waste arising in the first instance]," said Defra."We support the industry's increasing focus on reducing construction waste by designing and managing it out, and the involvement of designers in the work of the Green Construction Board waste sub-group in delivering this aim. In addition, WRAP [the Government-funded Waste and Resources Action Programme] is looking to address this issue in the construction supply chain with a new responsibility deal with the construction industry that focuses on designing out of waste," it said.Lack of enforcement was another major issue contributing to, or causing, the failure of the current regime, according to 22 respondents. Those against the repeal indicated that if enforcement had been more effective then the SWMP Regulations could have been more successful. One of the main enforcement issues cited  by respondents was the fact that local authorities and the Environment Agency have a power, but not a duty, to actively enforce the regime."Defra still recognises the value of SWMPs as useful resource efficiency tools, which can be adapted for each project and business," the Department said in its own response to the consultation.

"SWMPs have been used by the construction industry for a number of years, and have become embedded into best practice for many businesses. Businesses have sufficient experience of SWMPs and have been able to demonstrate their value in making cost savings through resource efficiency, and therefore each business is best placed to make a judgement as to whether there is a value in completing a SWMP in full or part," it said.

It added that the purpose of the change was "not to outlaw SWMPs or to discourage their use", but rather "to allow businesses to balance the costs and benefits" of using one. Making the decision to use one voluntary would only have a "minimal" impact on efforts to reduce construction waste, keep it out of landfill and prevent fly-tipping, Defra said.