excavator in action 

The lack of improvement may be due to the reduction in regulatory engagement during the planning process. Property and construction firms should take note: the impacts of getting it wrong have significantly increased and we consider that it is only a matter of time before poor soil management practices result in significant consequences for construction firms, or worse; future site occupiers.

The Definition of Waste Code of Practice (the ‘Code’) launched by CL:AIRE is now 10 years old!

Land developers are encouraged to use the Definition of Waste Code of Practice when moving soils within or between sites.  This voluntary code avoids the need for a waste / environmental permit and provides reassurance that construction generated soils, previously deemed a waste, are being safely and efficiently reused within legal lines.

But still the code remains voluntary and often considered as ‘optional’ which means interpretations of whether soils are wastes within your own project may not always be correct.

Getting it wrong

The regularity of prosecutions is on the increase, with enforcement and prosecution replacing the consultative approach previously adopted by the EA. 

Chubb report that the average fine handed out by the EA has rocketed from £5,000 in 2000 to £178,000 in 2017.In addition to increasing EA fines, as of 1 April 2018, HMRC will extend Landfill Tax to disposals made at sites without an environmental disposal permit in England and Northern Ireland.  The tax is currently £88.95/tonne. This means that where the EA obtains a successful prosecution, HMRC may also prosecute.  To illustrate the point, a successful 2017 prosecution for depositing 3,920 tonnes of waste on land in breach of a waste exemption attracted a the fine of £19,500.  This pales when compared to further sanctions available today where HMRC potentially applies for £348,684 of tax due and a further fine matching the landfill tax amount.  In addition, the site owner would be instructed to remediate of the site. 

The consequences of getting it wrong are severe.

Getting it right

The Code of Practice identifies 6 simple requirements that must be met to ensure that your materials management approach complies with the Code and you do not breach waste licensing regulations:

  1. Protection of human health and environment
  2. Suitability of material for its intended use
  3. Certainty of material use
  4. Quantity of material for use is appropriate
  5. Verification Reporting
  6. Competence of practitioners.

Three recommendations to consider

WSP’s experience and tracking of increased prosecutions combines to make three main recommendations:

  1. Understand site soils early – this means good quality investigations at the planning stage of development to ensure best use, avoidance of unnecessary disposal and clarity on legal compliance
  2. Plan for reuse of soils – consider the development, make due consideration of site constraints within the masterplan and develop earthworks models to manage reuse of soils effectively; last minute landscaping bunds are not acceptable practice.
  3. Competency of advisors – make sure you get advice from suitably trained, qualified and experienced professionals and this includes the use of a Qualified Person to support the preparation and declaration of your materials management plans.

The benefits of well-run projects are often taken for granted, but no-one forgets the time and cost involved with defending a project from regulatory scrutiny and avoiding potential prosecution and reputational damage.

This blog was written by Andrew Moore, Technical Director, Ground Risk & Remediation

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