Environmental Protection Act 1990

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, [F1 as a dealer or 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;

[F2 [F3 (aa) to prevent any contravention by any other person of regulation 12 of [F4 the Environmental Permitting 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 [F5 or regulation 12 of [F6 the Environmental Permitting 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.

[F7 (1A) It shall be the duty of any person who is responsible for the management of extractive 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;

(b) to prevent any contravention by another person of regulation 12 of [F8 the Environmental Permitting Regulations] or of a condition of an environmental permit; and

(c) to prevent the escape of the waste from his control or that of any other person.]

(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.

[F9 (2A) It shall be the duty of the occupier of any domestic property in England [F10 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 [F11 purposes of subsections (1)(c) and (2A)] 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 or of a disposal licence under section 5 of the Control M1 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 [F12 or by virtue of regulations under section 2 of the Pollution Prevention and Control Act 1999] ;

(d) any person registered as a carrier of controlled waste under section 2 of M2 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.

F13 [(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 [F14 subsections (1)(c) and (2A)] above.]

(4) The following are authorised transport purposes for the purposes of [F15 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.

F16 [(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) [F17 , (1A)][F18 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) [F19 A] code of practice prepared in pursuance of subsection (7) above shall be laid

[F20 (a)] before both Houses of Parliament [F21 ; 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 Words in s. 34(1) substituted (E.W.) (29.3.2011) by The Waste (England and Wales) Regulations 2011 (S.I. 2011/988), reg. 1(2), Sch. 4 para. 3(3) (with regs. 2, 47(2))

F2 S. 34(1)(aa) inserted (E.W.) (1.8.2000) by S.I. 2000/1973, reg. 39, Sch. 10 Pt. 1 para. 4(a)

F3 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)

F4 Words in s. 34(1)(aa) substituted (E.W.) (6.4.2010) by The Environmental Permitting (England and Wales) Regulations 2010 (S.I. 2010/675), regs. 1(1)(b), 107, Sch. 26 para. 5(4)(b) (with Sch. 4)

F5 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)

F6 Words in s. 34(1)(c)(ii) substituted (E.W.) (6.4.2010) by The Environmental Permitting (England and Wales) Regulations 2010 (S.I. 2010/675), regs. 1(1)(b), 107, Sch. 26 para. 5(4)(b) (with Sch. 4)

F7 S. 34(1A) inserted (E.W.) (7.7.2009) by The Environmental Permitting (England and Wales) (Amendment) Regulations (S.I. 2009/1799), reg. 28, Sch. 2 para. 1(6)(a)

F8 Words in s. 34(1A)(b) substituted (E.W.) (6.4.2010) by The Environmental Permitting (England and Wales) Regulations 2010 (S.I. 2010/675), regs. 1(1)(b), 107, Sch. 26 para. 5(4)(b) (with Sch. 4)

F9 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)

F10 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)

F11 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)

F12 Words in s. 34(3)(c) inserted (E.W.) (29.3.2011) by The Waste (England and Wales) Regulations 2011 (S.I. 2011/988), reg. 1(2), Sch. 4 para. 3(4) (with regs. 2, 47(2))

F13 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

F14 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)

F15 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)

F16 S. 34(4A) inserted (retrospectively) by 1994 c. 40, s. 33(1) (with s. 33(2))

F17 Words in s. 34(6) inserted (E.W.) (7.7.2009) by The Environmental Permitting (England and Wales) (Amendment) Regulations (S.I. 2009/1799), reg. 28, Sch. 2 para. 1(6)(b)

F18 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)

F19 Word in s. 34(9) substituted (1.7.1999) by S.I. 1999/1820, art. 4, Sch. 2 Pt. I para. 102(2)(a)

F20 S. 34(9): “(a)” inserted (1.7.1999) by S.I. 1999/1820, art. 4, Sch. 2 Pt. I para. 102(2)(b)

F21 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)

C3 S. 34 restricted (E.) (13.4.2001) by S.I. 2001/1478, reg. 3(b)

C4 Ss. 33-34C applied (E.W.) (29.3.2011) by The Waste (England and Wales) Regulations 2011 (S.I. 2011/988), regs. 1(2), 47(3) (with regs. 2, 47(2))

C5 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 1974 c. 40.

M2 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 [F22 or dealer] , 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;

[F23 [F2 (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; F24 ...

[F25 (ba) on the transfer of any waste oil, to ensure that this is separately collected where technically feasible; 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 [F26 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.

[F27 (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.]

[F28 (2A) It shall be the duty of any person who produces, keeps or manages controlled waste, or as a broker or dealer has control of such waste, to take all such measures available to that person as are reasonable in the circumstances to apply the waste hierarchy set out in Article 4(1) of the Waste Directive.

(2B) The duty in subsection (2A)—

(a) may be departed from where this is justified having regard to the overall impacts of the generation and management of such waste; and

(b) does not apply to an occupier of domestic property as respects the household waste produced on the property.

(2C) The Scottish Ministers may give guidance on the discharge of the duty in subsection (2A), including the circumstances in which that duty may be departed from under subsection (2B)(a).

(2D) A person seeking to discharge the duty in subsection (2A) must, in doing so, have regard to any guidance given under subsection (2C).]

(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 or of a disposal licence under section 5 of the Control M1 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 M2 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.

F13 [(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.

F16 [(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.]

[F29 (4B) In this section—

• “separately collected” means collected separately from other types of waste so as to facilitate a specific treatment;

• “waste oil” means any mineral or synthetic lubrication or industrial oil which has become unfit for the use for which it was originally intended, such as used combustion engine oil and gearbox oil, lubricating oil, oil for turbines and hydraulic oil.]

(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 [F30 duties imposed by subsections (1) 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) [F19 A] code of practice prepared in pursuance of subsection (7) above shall be laid

[F20 (a)] before both Houses of Parliament [F21 ; 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

F2 S. 34(1)(aa) inserted (E.W.) (1.8.2000) by S.I. 2000/1973, reg. 39, Sch. 10 Pt. 1 para. 4(a)

F13 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

F16 S. 34(4A) inserted (retrospectively) by 1994 c. 40, s. 33(1) (with s. 33(2))

F19 Word in s. 34(9) substituted (1.7.1999) by S.I. 1999/1820, art. 4, Sch. 2 Pt. I para. 102(2)(a)

F20 S. 34(9): “(a)” inserted (1.7.1999) by S.I. 1999/1820, art. 4, Sch. 2 Pt. I para. 102(2)(b)

F21 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)

F22 Words in s. 34(1) inserted (S.) (27.3.2011) by The Waste (Scotland) Regulations 2011 (S.S.I. 2011/226), regs. 1(1), 2(4)(a)(i)

F23 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)

F24 Word in s. 34(1) omitted (S.) (27.3.2011) by virtue of The Waste (Scotland) Regulations 2011 (S.S.I. 2011/226), regs. 1(1), 2(4)(a)(ii)

F25 S. 34(1)(ba) inserted (S.) (27.3.2011) by The Waste (Scotland) Regulations 2011 (S.S.I. 2011/226), regs. 1(1), 2(4)(a)(ii)

F26 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)

F27 S. 34(2) substituted (S.) (21.1.2005) by The Waste (Scotland) Regulations 2005 (S.S.I. 2005/22), regs. 1, 3(3)

F28 S. 34(2A)-(2D) inserted (S.) (27.3.2011) by The Waste (Scotland) Regulations 2011 (S.S.I. 2011/226), regs. 1(1), 2(4)(b)

F29 S. 34(4B) inserted (S.) (27.3.2011) by The Waste (Scotland) Regulations 2011 (S.S.I. 2011/226), regs. 1(1), 2(4)(c)

F30 Words in s. 34(6) substituted (S.) (27.3.2011) by The Waste (Scotland) Regulations 2011 (S.S.I. 2011/226), regs. 1(1), 2(4)(d)

Modifications etc. (not altering text)

C5 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 1974 c. 40.

M2 1989 c. 14.