Legal Q&A: Site waste management plans

What is the problem?

Each year the construction industry in the UK uses 400 million tonnes of solid materials. In addition, it is estimated that something like 13% of materials delivered to site are not even used and just end up in skips. Further, about one- fifth of all flytipped waste is construction and demolition waste.

What does the government propose to do about it?

In April 2007, the government went out to consultation on the proposed draft Site Waste Management Plans Regulations 2008. The consultation runs until 9 July 2007.

What are the proposals?

Anyone intending to carry out a construction project worth more than £250,000 must prepare a site waste management plan (SWMP) before work begins on site. The SWMP must be kept either at the site office or, if there is no site office at the site, for at least two years after completion of the project.

What do we have to include in the SWMP?

Rather a lot - there are basic requirements that every SWMP must include and further information depending on the value of the project.

Every SWMP must include details of the person who drafted it, the person in charge of the project and (if one has been appointed) the contractor's identity (if there is more than one contractor, details of the principal contractor must be included).

It must also describe the construction works proposed, including the location of the site and estimated value, and record decisions made before the SWMP was drafted on the nature of the project, its design, construction method or materials employed. It must also describe the waste that will be produced, estimate the volume of each different waste type that will be produced and identify the waste management action proposed for each different waste type including re-using, recycling, recovery and disposal.

Every time waste is removed from site the SWMP must be updated with further information, including the type of waste removed, the site the waste is being taken to and the identity of the waste management contractor removing the waste. The principal contractor must also record on the SWMP within a month of completion a statement confirming that the plan has been monitored on a regular basis to ensure that work progressed in accordance with the plan.

The SWMP will also need to include "a description of any lessons learnt from any differences in circumstances between the first draft of the plan and actual performance".

If the project has a higher estimated value (over £500,000), the SWMP must be further updated to include the identity of the waste management contractor removing the waste (including waste carrier registration details) and a written description of the waste required by section 34 of the Environmental Protection Act 1990.

Again, within one month after completion, the SWMP must be amended to include the lessons learnt, a comparison of the estimated quantities of each waste type as against the actual quantities of each, if the contractor has learnt any lessons, an action plan to address these in the next project and an estimate of the cost savings that have been achieved. It is interesting to note that the government assumes there will be savings in preparing the SWMP!

But won't all this all end up costing more to implement than the benefit received?

Apparently not for the larger projects, which is why the limit has been set at £250,000. According to the Building Research Establishment, the break-even point (when the estimated cost of writing and implementing the SWMP and the estimated benefit is the same) is £250,000. Above this the benefits should outweigh the costs. Time will tell whether this is, in fact, the case.

What will happen if we don't produce an SWMP?

The sanctions are quite severe. If you start a project without an SWMP, the person in charge of the project and the principal contractor will both be guilty of an offence. The penalty is imprisonment, a fine or both. Not only this, but also an individual director, or manager of the guilty organisation will be guilty of an offence.

That seems quite harsh?

Not really - the government really wants to clamp down on waste crimes generally and is keen to promote its green agenda at the same time. Besides, it has introduced the option of imposing fixed penalty fines of £300 instead of pursuing a full- blown prosecution. Where it will all end is anybody's guess.