August 28th, 2015

Waste hierarchy compliance: a tick box exercise?

7 minute read

by Sam Taylor and Peter Jones


The waste hierarchy is one of the fundamental elements of the European waste management policy. Enshrined in the Waste Framework Directive, and transposed into UK law in the Waste (England and Wales) Regulations 2011 (‘the 2011 Regulations’), applying the waste hierarchy is a legal duty on all producers of waste. But with little threat of enforcement of this obligation, many businesses in the UK seem unmotivated to act and compliance appears to be literally no more than a tick box exercise.


TEEP of the iceberg

There has been a great deal of heat and rather less light generated in discussions of the 2011 Regulations – but most of it has been focused on the requirement under Regulation 13 to separately collect dry recyclables, subject to the so-called “TEEP test”. Many local authorities have carried out assessments – of variable quality – to check that the waste services they provide for residents are compliant with this requirement. However, outside the Waste Regulations Route Map, rather less attention has been paid to the significant implications of Regulation 12 and the application of the waste hierarchy.

Regulation 12 applies to anyone who “imports, produces, collects, transports, recovers or disposes of waste” and to waste dealers and brokers – pretty much everyone. It requires them to “take all such measures available… as are reasonable in the circumstances” to apply the familiar priority order:

  • Prevention
  • Preparation for re-use
  • Recycling
  • Energy recovery
  • Disposal


Departing from the hierarchy is allowed only where this would achieve a better overall environmental outcome (e.g. the use of anaerobic digestion (AD), classed as energy recovery, to treat food waste in preference to composting, a form of recycling). Such departures should be justified by life-cycle thinking regarding the overall impacts of the generation and management of the waste, taking account of factors including environmental protection, technical feasibility, economic viability, resource protection, health and social impacts.


A big binner’s guide

In order to help with the practical implementation of the hierarchy, Defra provided statutory guidance. It may be a bit garbled by the decision to treat “black bag waste” as a separate material stream, but generally it’s pretty good. It advises anyone handling waste to:

  • “plan how you will apply the waste hierarchy
  • monitor your performance regularly
  • know what waste you are producing, and make efforts to produce less,
  • sort and segregate the waste you do produce to help you or others recover value from it”


It goes on to say:

“If you are making decisions on waste management which do not comply with the waste hierarchy because of these other factors, you must be able to justify them. It is good practice to keep a record of your decisions.”

It’s sensible and proportionate advice – but is it being followed?


Ticked off?

One would hope businesses are taking their obligations seriously. Under Regulation 35 every transferor of waste is required to confirm that they have applied the waste hierarchy. For most waste producers, this is done by ticking a box contained in Section B of the Waste Transfer Note, a document used to record almost all waste movements in the UK.



Box of ticks: how many businesses understand what checking this box means?


The Environment Agency estimates that annually 20 million waste transfer notes and two million consignment notes are issued in England and Wales. Eunomia’s transfer notes come pre-completed by our waste management company, with the Regulation 12 box conveniently ticked – and since we source segregate and recycle over 95% of our waste, we’re confident that we’ve fulfilled our duties under Regulation 12. But would other businesses, perhaps less concerned about waste, bother to understand what ticking this box means for them? If you suspect they might not, it means many could be making false assertions on a statutory form about having undertaken this legal duty.


Capital FM

Is there reason to think this is a real problem? Statistics on commercial and industrial waste are notoriously poor, with heavy reliance on infrequent and relatively small-scale surveys to inform the picture. However, you only need to look up and down your local high street to get a sense of what’s going on.

Consider food waste, for example. Once mixed with other waste, there’s no chance of the food being suitable for AD. We have separate collections, both from our Bristol office and our office space in London – that’s despite being pretty tiny producers of food waste. But we don’t have to look far to find much larger waste producers that appear not to be separating food waste – or even dry recyclables.

Take the Leon opposite our London office as an example – although we could just as well point to many cafes and restaurants across the land. Inside the shop there is just one hole in cabinet unit for all waste, whether it be your ‘Clean Green Shake’ cup or the remains of your ‘Sausage & Egg Muffin’. Waste seems not to be an urgent priority for a founding member of the Sustainable Restaurant Association.


Inaction in action

Clearly there are barriers to recycling: the difficulty of making commercial food waste collections pay means they aren’t always conveniently available, and where they can be obtained it can still be cheaper for businesses to throw waste away rather than send it for recycling. But if these barriers are resulting in a departure from the waste hierarchy, we should expect to see producers preparing assessments that justify their actions on the lifecycle grounds the law allows.

We’ve received very few enquiries from businesses regarding how to comply with the waste hierarchy, or how to justify not doing so – and only a handful of local authorities have been interested in such assessments. The obvious conclusion is that waste hierarchy is widely being ignored. As a result, some businesses will be missing out on significant environmental and economic benefits; while others are potentially putting any rivals that do strive to apply the hierarchy properly at a commercial disadvantage.



The waste hierarchy means rubbish is part of every business’s business. Photo by bixentro (CC BY 2.0), via Flickr.


That puts the ball in the court of the regulators. Enforcement of Regulation 12 falls to the Environment Agency (EA) in England and Natural Resources Wales in Wales. The Scottish Environmental Protection Agency has an easier task, since the Scottish Government has placed an unequivocal requirement on businesses to sort dry recyclables and food waste.

The EA has confirmed in correspondence with ADBA that it has never taken any enforcement action in relation to the waste hierarchy – not a single fine or prosecution. Instead the EA has engaged with businesses to educate and enable them on compliance. It is unclear how much of this engagement work has been done, or how effective the EA believes it to have been.

Of course, to justify this inaction the regulators would point out that:

  • They received no new money to enforce the 2011 Regulations – no doubt because the impact assessment said there would be no overall regulatory costs, despite the expectation that there would be 11 prosecutions a year for non-compliance with Regulation 12 (see paragraph 34);
  • Budgets are tighter than ever;
  • They have no way to recover their monitoring and enforcement costs; and
  • They have other enforcement priorities, such as waste crime.


All this is true, but it’s not consistent with upholding the law and creating a level playing field for businesses. It’s also inconsistent with the EA’s duty to have regard to economic growth. Government’s draft guidance for regulator explicitly states that ‘support for the level playing field is a key way regulators support growth’.

The EA probably wouldn’t feel able to highlight the pressure it is under from BIS and the Cabinet Office to avoid being seen as letting “red tape” hold back business; or its concerns about skirmishing with DCLG over local authority food waste collections. However, there are indications that the EA is starting to look more positively about making the waste hierarchy and the TEEP test work hand in hand, and it may be unwise for businesses to assume that inaction to date will continue indefinitely.

The failure of many businesses to apply the waste hierarchy is not merely a lapse in form filling: it holds back progress on recycling, and can even mean that organisations missing out on the chance to save money. If the EA finds the resources to act, it will come as a shock to some waste producers and collectors, but one that they can and should be prepared for.


by Sam Taylor and Peter Jones


Sam Taylor Peter Jones


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Phillip Ward

This raises a lot of questions which are central, not just to implementation of the waste regulations, but to the whole debate about the circular economy. I am not convinced that enhanced enforcement action is capable of turning the tide on its own. Defra/BIS need to deliver on their earlier promise to revise their guidance, in particular to sort out the “black bag” category. That might involve making it clearer that “minimising” black bag waste involves active steps to divert suitable material to recycling or reuse, perhaps by enhancing separate collections. ESA members should back a common approach to educating… Read more »

Shlomo Dowen
Shlomo Dowen

Thanks for another thought-provoking blog post gang! I am aware of instances where (failed / would-be) incinerator operators and those seeking to support them argue that they do not have to worry about burning non-residual waste (i.e. material that should be reused, recycled, composted, sent for AD, etc.), because the Waste Reg’s 2011 “ensure” that all non-residual waste is dealt with in accordance with the Waste Hierarchy.