By John Crawford

ON June 8 The Herald carried a report about Declan Clarke, sentenced to 11 months after pleading guilty to fly-tipping 51 tonnes of scrap tyres and household waste in and around Drumchapel between June and October 2020. The clean-up costs have been estimated at around £130,000, all landed on council taxpayers.

It’s the classic case of an individual offering a “no questions asked” waste collection and disposal service at prices far below those charged by legitimate waste management companies. While the Scottish Environment Protection Agency (Sepa) deserves credit for securing the conviction, the question has to be asked: what went wrong with the regulatory regime?

When Sepa was formed in 1996, the Scottish councils’ pollution control staff transferred over to them, and they assumed that enforcement of the Duty of Care would also transfer automatically, but Sepa immediately told the councils that it was down to a number of parties (waste producers, carriers, and disposers etc) to observe/enforce the Duty. Anybody in these categories, when handing over waste to a third party, had to ensure the transfer was accompanied by paperwork describing the nature and quantity of the waste, theoretically providing a trail that could be followed when things went awry. Sepa and the councils both have powers to enter premises and examine waste transfer notes but there seems to be little coordination between them.

Over the years in fly-tipping incidents, the tendency has been to apply the Duty retrospectively, with waste carriers and disposers being the prime suspects, and little focus on those waste producers who involve dodgy collection service providers in the first place.

In the Clarke case, there must be umpteen garages who gave him their scrap tyres with no interest in what he intended to do with these. Did nobody in Sepa consider a joint strategy with the councils to visit all garages, ask them what happened to their scrap tyres, and insist on seeing their waste transfer notes?

And that’s where the Duty of Care needs to be updated. Councils and Sepa should be required to visit businesses regularly (in some cases, they’re already doing visits for other purposes) to inspect their Waste Transfer Notes and confirm that their waste has been transferred to a Registered Waste Carrier, not some crook out to make a fast buck. Failure to produce such evidence should be an offence. It’s not a new idea: some English councils have been doing it for years, supported by courts that don’t accept pleas of "we don’t produce any waste".

It wouldn’t take much effort to introduce these changes and get to the heart of the fly-tipping problem, including removing an anomaly where if a householder employs a tradesperson to do improvements, the obligation to comply with the Duty is automatically transferred to the tradesperson, whereas if they use "man and van" to get rid of the waste, they’re bound by the Duty. It urgently needs sorting out.

The author spent many decades in the Scottish waste industry