What is the duty of care?
There is a legal responsibility (Section 34 of the Environmental Protection Act 1990) on a business to:
- Make sure their waste is stored correctly and does not escape their control.
- Only give their waste to an authorised person (a waste disposal company that can legally take it).
- Make sure a written record of the waste is kept every time the waste is passed to a waste disposal company.
Regulation 35 of the Waste (England and Wales) Regulations 2011 means that businesses must now also keep Waste Transfer Notes for each time waste is given to a private company.
By law:
- Written description and,
- Waste Transfer Notes.
must be kept by a business for at least two years from the date that the waste is transferred. The records must be accurate and show that the waste is being passed to a legal waste disposal company (not Southend-on-Sea City Council - we do not collect business waste). This is for the disposal of all waste and recycling from a business, not just some of it.
Businesses may wrongly believe that their waste is the same as that from a home (i.e., 'household waste') and may think it can be treated in the same way and be collected by us. This is not correct, any waste created in a business premise or by a business is 'business waste' and cannot be collected by us.
We will give advice and work with businesses to make sure they dispose of their waste legally.
If we:
- get reports of illegal waste disposal by a business, or
- are not sure what is happening to a business's waste
we can legally ask for records of where their waste has gone. If it is not given or available, this can end in enforcement action against the business.
What to do if you think a business is not dealing with their waste correctly
If you:
- think a business is not arranging for the correct disposal of their waste or recycling
- you witness it illegally being mixed with household waste
please contact us so we can investigate. If the waste is left illegally by them please report it as fly-tipping, giving as much information as possible about the business or person doing it
Will every report lead to enforcement action?
No, Officers will usually:
- talk to the business
- seek evidence
- may ask for records of where waste is going first
Frequently asked questions business "duty of care" enforcement
What powers do Southend-on-Sea City Council have?
We have powers to give a notice to a business, under section 34 of the Environmental Protection Act 1990 and Regulation 35 of the Waste (England and Wales) Regulations 2011. The notice will ask for the business to give us records and copies of:
- written descriptions of their waste
- waste Transfer Notes
- receipts
to explain where their waste has been taken for recycling or disposal.
Doesn't the Council collect business waste?
No - we do not collect business waste. Businesses must arrange for their own recycling or waste collection by private waste collection companies.
What should I do if I receive a letter about the "duty of care"?
We will usually contact businesses before starting formal enforcement action. Please read the letter and check if you are meeting your duty of care responsibilities. If needed, we may have to give a business a formal notice and may prosecute them so please do not ignore the letter.
What happens if I have not kept records of where all my waste goes?
You are committing an offence and may be prosecuted. You should act straight away to keep record of where all your waste is taken to. Waste collection companies will usually start giving records to their customers as soon as they start collecting the waste.
When would a notice be sent and what would it say?
We can give a notice, under section 34 of the Environmental Protection Act 1990 and Regulation 35 of the Waste (England and Wales) Regulations 2011, to a business because:
- we get reports of illegal disposal of waste by a business or businesses in an area
- there is no clear arrangement for the legal disposal of waste from a business
- evidence is found of business waste illegally put out as household waste
The notice will set out:
- the documents needed as evidence
- where the documents must be sent
- the length of time a business has, to give the documents to the Council (usually seven days from the date put on the Notice)
What happens if I ignore the notice?
If a business ignores the notice, they are guilty of an offence and liable, on summary conviction, to a fine of up to £5,000. We can choose to issue a £300 Fixed Penalty notice to the business, under section 34A of the Environmental Protection Act 1990, rather than prosecute. Payment of a Fixed Penalty notice allows the discharge of any liability for conviction for the offence.
My business never produces waste so how can I provide records?
All businesses create waste. What makes an item business waste is where it is produced. Any waste and recycling from inside a business like a shop, café, or restaurant or from running the business is classed as business waste (unless it is hazardous or clinical waste). Records must be kept of where the waste goes for at least two years. Putting business waste out for collection with household waste or taking it home to put it out as household waste, is breaking the "duty of care" and is an offence.
Can I appeal against the serving of the notice?
No, there is a legal duty on businesses to have the correct records of where their waste goes and to keep them as evidence.
What happens if I can't give the records asked for in the notice?
If a business has no records or partial records, they must tell us as soon as they receive the notice. We urge businesses to set up arrangements for the collection of their waste immediately and to tell us about these arrangements, with evidence, in their reply to the notice.
My business received a notice and I have provided all the records requested, what happens next?
We will look at what has been given to us and will tell you if it is correct. If it is, thank you. Please remember that we may ask for records again at any time in the future. If any waste linked to your business is found illegally disposed of, or incorrectly stored (and escaping from your control) it is still an offence and you may be prosecuted.