Plans to overhaul the current waste exemptions system have been unveiled with a raft of exemptions set to be changed or removed, placing more scrutiny on the development sector.
The reforms, which feature in a Defra-led consultation, are targeting low-risk waste operations and aim to close loopholes that enable abuse where exemptions are stretched beyond their intended scope.
Coming as part of the government’s regulating for growth programme, the plans would look to make changes to the Environmental Permitting (England and Wales) Regulations 2016.
Rebecca Stanton, Associate in Thrings’ Planning and Environment team takes a look at the proposals and what developers need to be considering before the changes land on their doorstep.
The Environmental Permitting Regime
The EP regime requires those carrying on certain types of activities requiring a permit, covering a wide range of activities that release emissions to, or otherwise impact on, land, air and water, or that involve waste.
Non-compliance can result in criminal penalties.
In 2023, a post implementation review of the regulations was published. The latest consultation proposals aim to make the process for creating exemptions and amending their conditions more flexible.
What’s in the consultation?
Among the plans outlined in the consultation are:
- Prohibiting exemption use: Exemptions will be invalid if deployed at a permitted site – or on adjacent land with a “direct link,” meaning shared staff, equipment or infrastructure – closing a loophole that previously allowed operational expansion without a permit.
- Limiting multiple exemptions: If more than one exemption is registered at the same site, the storage limit for each waste type defaults to the lowest limit among them. For instance: an allowance for 50 m³ of wood plus another for 60 m³ would be capped at 50 m³.
- Stronger recordkeeping: Operators will be required to keep and produce records for all exemptions on request – including details like waste types, volumes, and throughputs.
- Modifying or removal of exemptions: Several exemptions, including the use of waste in construction, will see condition changes, including reduced storage limits or renamed purposes. Others, under the proposals, would be removed altogether, requiring permits or cessation of activities.
The paper proposes that any changes would be rolled out in a staggered fashion over several months with removed exemptions having a three-month transition. Meanwhile, condition-changing exemptions would have six months to a year to comply. Recordkeeping rules would apply immediately on regulation enforcement.
Why does this matter?
These reforms will mean developers face significantly less flexibility without the full range of exemptions open to them. Options will be more limited and more tightly controlled meaning compliance is key.
With electronic records and stronger tracking required, any non-compliance can be flagged swiftly, meaning waste practices will need to be clearly documented and ready for inspection.
Particularly on urban fringe or contiguously operational sites, you must avoid situations where an exemption directly links to a permitted activity – even if it is accidental.
The reforms will also mean a likely rise in applications for full environmental permits, a lengthier and more detailed process than a simple exemption registration.
How you can prepare
Given this regulatory shift, your developer clients may wish to consider the following advice from Thrings’ Planning & Environment team:
- Audit current exemptions: Identify any exemptions on your sites – especially those allowing multiple registrations. Also check for adjacent or connected permitted activity; that “direct link” may invalidate your exemption arrangements.
- Assess your waste types and volumes Compare storage allowances and ensure you’re not unintentionally exceeding the lowest limit. For exemptions with changing conditions, plan how you’ll adapt within the six-to–12-month window.
- Get your records in order: Move to electronic recordkeeping systems now (rather than scrambling to meet sudden requirements) and ensure detailed logs are prepared on waste types, storage volumes, sources, and movement to satisfy regulators.
- Plan for permit applications where needed: For exemptions that are being removed, assess whether you can scale them back, cease the activity, or switch to a permit – ideally before the three-month deadline hits.
- Seek legal and technical help early: Whether you need changes to site operations, assistance drafting permit applications, or advice on waste-linked planning conditions – getting ahead of the changes is key.
Rebecca Stanton, Associate in Thrings’ Planning and Environment team, said: “These reforms signal a sharper regulatory lens on stopping the misuse of exemptions, clamp down on waste crime and protect the environment.
“For housebuilders and developers, that means a shift from flexibility to scrutiny and so, if you are reliant on exemptions for construction waste or storage, it would be wise to get organised and ensure every aspect of your business activities are compliant ahead of the change. That way, you can focus on the day-to-day instead of playing regulatory catch-up.
“Falling foul of the regulations can result in prosecution, the cost of which to defend, alongside any potential fines, can vastly outweigh the cost of seeking early legal advice on compliance so we would always recommend early action to save yourself a headache later on.”
Thrings’ Planning and Environment lawyers have extensive experience in navigating complex local and national planning policy legislation and has successfully supported commercial and residential applications through the approval and appeal processes. To find out more and for advice on your development proposals, including how to address enforcement notices, please do get in touch.
