The Final (we hope) SWMP Regulations Update

Dear all,

Further to previous mailings on the repeal of the SWMP Regulations, we have now had our reply from DEFRA, within the time limit they set themselves! The email, received this morning, reads as follows:

Dear Ms Wood,

Thank you for your email of 17 September about the repeal of the Site Waste Management Plans (SWMP) Regulations 2008. I have been asked to reply.

As you will know, the Regulations place an obligation on anyone who intends to carry out a construction project with estimated costs greater than £300,000 (excluding VAT) to prepare a SWMP conforming with the Regulations before construction work begins.

This means that any construction work that begins after the repeal date would not need a SWMP. However, if construction work begins before the repeal date, the legal obligation is operative and the person must prepare a SWMP in accordance with the Regulations.

If construction work begins before the repeal date and a SWMP is not produced in accordance with the Regulations, this would be a breach of the legal requirement that was in place when the work began and that offence could, in principle, be prosecuted by the enforcing authorities.

I hope you find this information helpful.

Yours sincerely,

Customer Contact Unit

Defra

Our advice therefore remains that until the SWMP Regulations are formally repealed (anticipated to be 1 December 2013) it is business as usual. Once the Regulations are repealed, you should maintain records for any projects where works started prior to the repeal, in accordance with the regulations..

Hopefully everything is now clear but if you have any questions,please do not hesitate to contact Anna Wood on 01242 248215, or any other member of the BPE Construction & Engineering Team.

19 September 2013

UPDATE TO OUR ARTICLE DATED 2 SEPTEMBER 2013

NEWSFLASH: DEFRA has pushed back the repeal of the SWMP Regulations to 1 December 2013.

Following the e-shot on 2 September 2013, we received numerous responses from readers asking for more information on the unanswered question regarding the retrospective vs prospective effect of the repeal.

With our friend Dr Google providing little assistance and DEFRA’s own website being equally scant in detail, we telephoned DEFRA for further information. On that call we were advised that the quickest way to get a response was to email them. An email was duly sent on 17 September 2013 asking for further information given that, at that stage it appeared the repeal was due in just nine working days’ time. The auto-response from DEFRA was as follows:

"We have a target of replying to emails within 15 working days, however, we will reply sooner if we can. If we feel that the issues raised do not fall within the Department's responsibilities, we will transfer your email to the relevant government department and ask that they reply to you directly.

If you need a quick response, please call the Defra Helpline on 08459 33 55 77, or from outside the UK call +44 (0) 20 7238 6951 (Minicom/textphone for the deaf and hard of hearing: 0845 300 1998)."

Needless to say we did not make a second call as our desire to enter a potentially infinite loop was tempered by the need to get back to the day job of advising you, our clients!

Further research today has brought to our attention that the repeal has now been pushed back to 1 December 2013 but there is no further information as to the detail. We will, of course, provide a further update as soon as one is available but in the meantime our advice is to continue to have all due regard to your statutory obligations under the SWMP Regulations remembering, of course, that they do not apply to projects valued at under £300,000 in any event.

Please watch this space.

2 September 2013

DEFRA has today announced the almost immediate repeal of the Site Waste Management Plan Regulations 2008. Despite its consultation finding an exact 50:50 split in those supporting and opposing the repeal, the Government has decided to "bin" the regulations from 1 October 2013.

So besides reducing the number of acronyms the construction sector has to deal with, what will be the effect of this change in the law?

Well of course the SWMP Regs only ever applied to projects valued at £300,000 and over, and the landfill tax escalator continues to have effect, so for a majority of projects in the UK, this news probably has little impact.

However, at BPE Solicitors LLP, we see this as positive news for our many clients who are regularly involved in "big value" contracts. SWMP arguably had no real impact on projects aiming for BREEAM "very good" or higher, other than to create more paperwork for project managers. Some reports estimate that the repeal will result in as much as £3.9m being saved by businesses and clearly any opportunity to cut costs and improve profit margins will be welcomed by contractors.

Contractors will, of course, appreciate that this government announcement relates only to the SWMP Regs, with all other environmental legislation remaining in force. There are positive lessons that have been learned from the SWMP Regs and no doubt many contractors (particularly if the government consultation is anything to go by) will continue to apply the principles of the regulations and continue to reap the benefits of more efficient waste disposal.

Before you make a diary entry for 1 October 2013 to shred all your SWM Plans (including those you've been maintaining for the last two years), please watch this space! DEFRA has not yet made it clear whether the repeal will be retrospective, i.e., we are not sure if the repeal is wholesale, or whether it will only apply to construction projects commenced on or after 1 October 2013. We will provide another update when further details are released.

Today’s news appears to be the "next chapter" rather than the end of the story though, with the government promising a paper entitled "Waste Prevention Programme for England" by the end of the year and the target of a 70% reduction in construction waste by 2020 remaining firmly in place.

If this article raises any questions, please do not hesitate to contact Anna Wood on 01242 248215 or anna.wood@bpe.co.uk or any other member of the BPE Construction & Engineering Team.

These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.