Consultation on new household waste duty of care guidance and fixed penalty notice guidance

Until 27 August 2018 the Department for the Environment, Food and Rural Affairs (“Defra”) and the Welsh Government are consulting on updated guidance for householders on the duty of care for waste. Defra also seeks views on new guidance for English local authorities on issuing fixed penalty notices (“FPNs”) for household waste duty of care offences.

Householders have a duty of care to take reasonable steps to ensure their waste is passed to an authorised person. At the start of this year Defra and the Welsh Government published a related consultation to introduce FPNs for the householder waste duty of care as an alternative to prosecution where the occupier of a domestic property has failed to comply with their duty. The householder can decide not to pay the penalty if they do not believe themselves to be guilty of a breach of the duty of care, and provide evidence to the regulator to justify non-prosecution. The regulator must take such evidence into account in any subsequent consideration to bring criminal proceedings. 43% of respondents to the consultation felt that the Waste Duty of Care Code of Practice does not provide enough guidance on reasonable measures that can be taken to meet the household duty of care, with 97% of respondents recognising a widespread lack of awareness of the duty of care among householders. 90% of respondents felt also that further guidance to regulators on the use of the proposed FPNs was needed, particularly that criteria should be provided for when an FPN should be used and when prosecution is appropriate.

The proposed FPNs are intended to be mainly used:

• Where fly tipped waste can be traced back to a householder who is found to have failed to take reasonable steps to ensure that they transferred the waste to an authorised person.
• Where an unauthorised carrier is found to be carrying waste that was directly transferred to them by a householder.
• Where a householder is found to be transferring their waste to an unauthorised person at a site that does not have a permit or exemption.

In the present consultation, updated guidance on the waste Duty of Care Code of Practice and draft non-statutory guidance to English local authorities on how FPNs should be used are included as annexes to the consultation. Guidance for Welsh local authorities is to be issued separately by the Welsh Government.