Environmental Protection Act 1990

Duty of care etc. as respects waste E+W+S

34 Duty of care etc. as respects waste. E+W

(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, as a broker, has control of such waste, to take all such measures applicable to him in that capacity as are reasonable in the circumstances—

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

[F1 [F2 (aa) to prevent any contravention by any other person of regulation 12 of the 2007 Regulations or of a condition of an environmental permit;]]

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

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

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

(ii) that there is transferred such a written description of the waste as will enable other persons to avoid a contravention of that section [F3 or regulation 12 of the 2007 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.

(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.

[F4 (2A) It shall be the duty of the occupier of any domestic property in England [F5 or 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.]

(3) The following are authorised persons for the [F6 purposes of subsections (1)(c) and (2A)] above—

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

[F7 (b) any person who is the holder of an environmental permit in relation to a waste operation;]

[F8 (ba) any person who is carrying on an exempt waste operation;]

(c) any person to whom section 33(1) above does not apply by virtue of regulations under subsection (3) of that section;

(d) any person registered as a carrier of controlled waste under section 2 of M1 the Control of Pollution (Amendment) Act 1989;

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

(f) a waste disposal authority in Scotland.

[F9 (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 [F10 subsections (1)(c) and (2A)] above.]

(4) The following are authorised transport purposes for the purposes of [F11 subsections (1)(c) and (2A)] above—

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

(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

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

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

[F12 (4A) For the purposes of subsection (1)(c)(ii) above—

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

(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.]

(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.

(6) Any person who fails to comply with the duty imposed by subsection (1) [F13 or (2A)] above or with any requirement imposed under subsection (5) above shall be liable—

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

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

(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.

(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.

(9) [F14 A] code of practice prepared in pursuance of subsection (7) above shall be laid

[F15 (a)] before both Houses of Parliament [F16 ; or

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

(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.

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

Extent Information

E1 This version of this provision extends to England and Wales only; a separate version has been created for Scotland only

Textual Amendments

F1 S. 34(1)(aa) inserted (E.W.) (1.8.2000) by S.I. 2000/1973, reg. 39, Sch. 10 Pt. 1 para. 4(a)

F2 S. 34(1)(aa) substituted (E.W.) (6.4.2008) by The Environmental Permitting (England and Wales) Regulations 2007 (S.I. 2007/3538), reg. 73, Sch. 21, para. 8(2) (with reg. 72, Sch. 4)

F3 Words in s. 34(1)(c)(ii) substituted (E.W.) (6.4.2008) by The Environmental Permitting (England and Wales) Regulations 2007 (S.I. 2007/3538), reg. 73, Sch. 21, para. 8(3) (with reg. 72, Sch. 4)

F4 S. 34(2A) inserted (E.W.) (21.11.2005) by The Waste (Household Waste Duty of Care) (England and Wales) Regulations 2005 (S.I. 2005/2900), reg. 2(2)

F5 Words in s. 34(2A) inserted (26.1.2006) by The Waste (Household Waste Duty of Care) (Wales) Regulations 2006 (S.I. 2006/123), reg. 2(1)

F6 Words in s. 34(3) substituted (E.W.) (21.11.2005) by The Waste (Household Waste Duty of Care) (England and Wales) Regulations 2005 (S.I. 2005/2900), reg. 2(3)

F7 S. 34(3)(b) substituted (E.W.) (6.4.2008) by The Environmental Permitting (England and Wales) Regulations 2007 (S.I. 2007/3538), reg. 73, {Sch. 21, para. 8(4)} (with reg. 72, Sch. 4)

F8 S. 34(3)(ba) inserted (E.W.) (6.4.2008) by The Environmental Permitting (England and Wales) Regulations 2007 (S.I. 2007/3538), reg. 73, {Sch. 21, para. 8(5)} (with reg. 72, Sch. 4)

F9 S. 34(3A) inserted (1.4.1996) by 1995 c. 25, s. 120(1), Sch. 22 para. 65 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

F10 Words in s. 34(3A) substituted (E.W.) (21.11.2005) by The Waste (Household Waste Duty of Care) (England and Wales) Regulations 2005 (S.I. 2005/2900), reg. 2(4)

F11 Words in s. 34(4) substituted (E.W.) (21.11.2005) by The Waste (Household Waste Duty of Care) (England and Wales) Regulations 2005 (S.I. 2005/2900), reg. 2(5)

F12 S. 34(4A) inserted (retrospectively) by 1994 c. 40, s. 33(1) (with s. 33(2))

F13 Words in s. 34(6) inserted (E.W.) (21.11.2005) by The Waste (Household Waste Duty of Care) (England and Wales) Regulations 2005 (S.I. 2005/2900), reg. 2(6)

F14 Word in s. 34(9) substituted (1.7.1999) by S.I. 1999/1820, art. 4, Sch. 2 Pt. I para. 102(2)(a)

F15 S. 34(9): “(a)” inserted (1.7.1999) by S.I. 1999/1820, art. 4, Sch. 2 Pt. I para. 102(2)(b)

F16 S. 34(9)(b) and the word “or” immediately preceding it inserted (1.7.1999) by S.I. 1999/1820, art. 4, Sch. 2 Pt. I para. 102(2)(c)

Modifications etc. (not altering text)

C2 S. 34 restricted (E.) (13.4.2001) by S.I. 2001/1478, reg. 3(b)

C3 S. 34(1)(c) extended (27.7.1999) by 1999 c. 24, s. 4(6)(e)(8)

Commencement Information

I2 S. 34 wholly in force at 1.4.1992; s.34 not in force at Royal Assent see s. 164(3); s. 34(5)(7)-(9)(11) in force at 13.12.1991; s. 34(1)-(4)(6)(10) in force at 1.4.1992 by S.I. 1991/2829, arts. 2, 4

Marginal Citations

M1 1989 c. 14.

34 Duty of care etc. as respects waste. S

(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, as a broker, has control of such waste, to take all such measures applicable to him in that capacity as are reasonable in the circumstances—

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

[F18 [F1 (aa) to prevent any contravention by any other person of regulation 6 of the Pollution Prevention and Control (Scotland) Regulations 2000 or of a condition of a permit granted under regulation 7 of those Regulations;]]

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

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

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

(ii) that there is transferred such a written description of the waste as will enable other persons to avoid a contravention of that section [F19 or any condition of a permit granted under regulation 7 of those Regulations]and to comply with the duty under this subsection as respects the escape of waste.

[F20 (2) An occupier of domestic property–

(a) shall, as respects the household waste produced on the property, take reasonable steps to secure that any transfer of waste is only to an authorised person or to a person for authorised transport purposes; and

(b) shall not otherwise be subject to the duty imposed by subsection (1) above.]

(3) The following are authorised persons for the purpose of subsection (1)(c) above—

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

(b) any person who is the holder of a waste management licence under section 35 below [F21 or of a disposal licence under section 5 of the Control M2 of Pollution Act 1974;]

(c) any person to whom section 33(1) above does not apply by virtue of regulations under subsection (3) of that section;

(d) any person registered as a carrier of controlled waste under section 2 of M1 the Control of Pollution (Amendment) Act 1989;

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

(f) a waste disposal authority in Scotland.

[F9 (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 subsection (1)(c) above.]

(4) The following are authorised transport purposes for the purposes of subsection (1)(c) above—

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

(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

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

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

[F12 (4A) For the purposes of subsection (1)(c)(ii) above—

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

(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.]

(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.

(6) Any person who fails to comply with the duty imposed by subsection (1) above or with any requirement imposed under subsection (5) above shall be liable—

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

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

(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.

(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.

(9) [F14 A] code of practice prepared in pursuance of subsection (7) above shall be laid

[F15 (a)] before both Houses of Parliament [F16 ; or

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

(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.

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

Extent Information

E2 This version of this provision extends to Scotland only; a separate version has been created for England and Wales only

Textual Amendments

F1 S. 34(1)(aa) inserted (E.W.) (1.8.2000) by S.I. 2000/1973, reg. 39, Sch. 10 Pt. 1 para. 4(a)

F9 S. 34(3A) inserted (1.4.1996) by 1995 c. 25, s. 120(1), Sch. 22 para. 65 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

F12 S. 34(4A) inserted (retrospectively) by 1994 c. 40, s. 33(1) (with s. 33(2))

F14 Word in s. 34(9) substituted (1.7.1999) by S.I. 1999/1820, art. 4, Sch. 2 Pt. I para. 102(2)(a)

F15 S. 34(9): “(a)” inserted (1.7.1999) by S.I. 1999/1820, art. 4, Sch. 2 Pt. I para. 102(2)(b)

F16 S. 34(9)(b) and the word “or” immediately preceding it inserted (1.7.1999) by S.I. 1999/1820, art. 4, Sch. 2 Pt. I para. 102(2)(c)

F18 S. 34(1)(aa) inserted after paragraph (a) (S.) (28.9.2000) by S.S.I. 2000/323, reg. 36, Sch. 10 Pt. 1 para. 3(3)(a)

F19 Words in s. 34(1)(c)(ii) inserted after the words “that section” (S.) (28.9.2000) by S.S.I. 2000/323, reg. 36, Sch. 10 Pt. 1 para. 3(3)(b)

F20 S. 34(2) substituted (S.) (21.1.2005) by The Waste (Scotland) Regulations 2005 (S.S.I. 2005/22), regs. 1, 3(3)

F21 Words repealed (prosp.) by Environmental Protection Act 1990 (c. 43, SIF 46:4), ss. 162(2), 164(3), Sch. 16 Pt. II

Modifications etc. (not altering text)

C3 S. 34(1)(c) extended (27.7.1999) by 1999 c. 24, s. 4(6)(e)(8)

Commencement Information

I2 S. 34 wholly in force at 1.4.1992; s.34 not in force at Royal Assent see s. 164(3); s. 34(5)(7)-(9)(11) in force at 13.12.1991; s. 34(1)-(4)(6)(10) in force at 1.4.1992 by S.I. 1991/2829, arts. 2, 4

Marginal Citations

M1 1989 c. 14.

M2 1974 c. 40.

[F17 34A Fixed penalty notices for certain offences under section 34 E+W

(1) This section applies where it appears to an enforcement authority that a person has failed to comply with a duty to furnish documents to that authority imposed under regulations made at any time under section 34(5) above.

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

(3) Where a person is given a notice under this section in respect of an offence—

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

(b) he may not be convicted of that offence if he pays the fixed penalty before the expiration of the period.

(4) 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.

(5) A notice under this section must also state—

(a) the period during which, by virtue of subsection (3) above, proceedings will not be taken for the offence;

(b) the amount of the fixed penalty; and

(c) the person to whom and the address at which the fixed penalty may be paid.

(6) Without prejudice to payment by any other method, payment of the fixed penalty may be made by pre-paying and posting a letter containing the amount of the penalty (in cash or otherwise) to the person mentioned in subsection (5)(c) above at the address so mentioned.

(7) Where a letter is sent in accordance with subsection (6) above payment is to be regarded as having been made at the time at which that letter would be delivered in the ordinary course of post.

(8) The form of a notice under this section is to be such as the appropriate person may by order prescribe.

(9) The fixed penalty payable to an enforcement authority under this section is, subject to subsection (10) below, £300.

(10) The appropriate person may by order substitute a different amount for the amount for the time being specified in subsection (9) above.

(11) 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 is paid before the end of a period specified by the authority.

(12) The appropriate person may by regulations restrict the extent to which, and the circumstances in which, an enforcement authority may make provision under subsection (11) above.

(13) 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.

(14) In this section—

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

• “enforcement authority” means the Environment Agency or a waste collection authority.]

Textual Amendments

F17 S. 34A inserted (E.W.) (16.3.2006 for certain purposes for W., 6.4.2006 for E. and 15.3.2007 in so far as not already in force for W.) by Clean Neighbourhoods and Environment Act 2005 (c. 16), ss. 45, 108; S.I. 2006/768, art. 3; S.I. 2006/795, art. 2(3), Sch. 2; S.I. 2006/2797, art. 4