Despite the shortages of materials that the construction industry experienced in 2021, and the concerns that this will continue in 2022, the industry produces a lot of waste.

You may have seen reports last year that construction, demolition and excavation were responsible for 62% of the UK's total waste in 2018, according to DEFRA – and while shortages will have changed that behaviour somewhat, the scale of that waste is such that more needs to be done.

New environmental legislation

The Environment Act 2021 (the Act) received Royal Assent in November last year, and will have a fundamental and far reaching cross-sector impact, with its aim being to deliver long term targets to improve air quality, biodiversity, water and waste reduction, and resource efficiency.

Much of the press coverage to date has focused on sewage and biodiversity, but what does the Act actually say about waste and resource efficiency?

A tougher stance on waste and resource efficiency

The Act confers powers on the relevant national authorities to make their own new regulations which aim to eliminate avoidable waste by 2050 through:

  • Extending producer responsibility, to make producers pay for the cost of the disposal of products, starting with plastic packaging
  • Charges for single use plastics
  • Introducing new resource efficiency information and requirements
  • Regulation of shipments of hazardous waste (therefore relevant to any asbestos you may find on site)
  • Banning or restricting export of waste to non-OECD countries
  • Waste enforcement and regulation.

The Act also amends existing legislation including the Environmental Protection Act 1990 (with changes around dealing with the separation of waste, electronic waste tracking, hazardous waste, and transfrontier shipments of waste) and the Environment Act 1995 (granting powers to establish charging schemes).

Together, these can be combined to make sweeping changes around how waste is dealt with at the moment, with potentially significant administrative, logistical, technological, and financial implications for the construction industry.

When will things change?

Currently, the Act provides that the relevant national authorities may make regulations relating to the above. It therefore essentially grants them that power, but it is then up to those authorities to determine how and when to exercise that power. As such, there is no certainty around what exactly the changes will be and how quickly they will come into effect. While two sets of regulations (which are not directly relevant to construction waste) have now been made under the Act, many are expecting a two year transition period for the most significant changes around waste to start coming into law.

What is certain is the new Office for Environmental Protection and other environmental regulators subject to its oversight will come under increasing pressure to make use of their wide ranging enforcement powers for those who breach their obligations.

What can construction businesses do now?

While the industry waits to see how national authorities will use and implement their new powers derived from the Act, there are a number of things construction businesses (developers, contractors and consultants) can be doing now:

  • Ensuring you are complying with current legislation around waste – as the Environment Agency says, "Your waste – your responsibility, even if it’s dumped by someone you pass it to for disposal. You could be fined up to £50,000 or face jail"
  • Reviewing how you currently monitor and manage waste to understand the scale and nature of your waste and enable you to more readily adapt to new legislation
  • To get ahead of these regulations and minimise the impact of future requirements, consider how you could be designing for adaptability, reusing components and materials, recycling and improving demolition systems
  • Consider using modern methods of construction (MMC) in your projects, as one of the cited benefits of MMC is reduced waste
  • Demonstrate commitment to high environmental standards, for example through the Common Assessment Standard, which covers many areas of risk management including sustainability
  • Find out what schemes are in your area to cut industry waste, for example the Pallet Loop recycling scheme
  • Make sure you keep an ear to the ground for future changes on waste so you are prepared for any change in good time.

The Act provides an opportunity to significantly reduce the industry's massive environmental footprint as it sets out a comprehensive framework which is just the start of regulatory changes. As such, it is a major milestone for the UK in its efforts to build a more sustainable ESG-driven construction industry and improve our natural environment for future generations.

This article is for general information only and reflects the position at the date of publication. It does not constitute legal advice.