Alison Cook, associate director, regulatory support team at Wardell Armstrong asks if it’s time for a more pragmatic approach towards topsoil, saying a few simple checks can ensure this valuable resource can be used without excessive legislative burdens…
A question I have been asked a number of times just recently is: “I need some topsoil, is it ok for me to accept it from a nearby development site?”
The answer in the majority of cases is that the topsoil is a waste and therefore can only be moved and used in accordance with waste legislation, potentially requiring an environmental permit for its reuse. The current view from the Environment Agency is clear, where top-soils have been stripped at a development and need to be sent off site because they are surplus to requirements they must have been discarded and they are and will remain waste.
There is a limited exemption for use of soils in construction but the U10 and U11 exemptions, which allow the spreading of certain waste materials on land to confer benefit, do no list topsoil. Then there is the potential to use a materials management plans under the CL:AIRE code of practice. In some circumstances this can be used to transfer clean natural materials from one site, for use on another. However, the code of practice is aimed specifically at construction projects and so is not applicable to land improvement or agricultural use.
It can’t be beyond our wit to come up with a few simple checks to ensure that this valuable resource can be used without excessive legislative burdens whilst at the same time preventing abuse of the system.
The result is that, if you want to use clean topsoil from a greenfield development site, you require an environmental permit. For understandable reasons the requirements for an environmental permit for deposit of waste for recovery are taxing, requiring detailed plans and cross sections, a financial model and analysis of the waste to evidence that it is suitable for use. Whilst this may be appropriate for some larger projects it is a piece of red tape that is vastly disproportionate to the risk if all you want to do is use a few tonnes of topsoil.
Of course no-one wants to see excessive depths of soils heaped into sham disposal, nor do we want to see large stockpiles left indefinitely because someone might use them one day. However, where we can meet the tests of suitability of use and certainty of use, there is a case to be made to say the material can come back into the chain of utility following that change of intention. In contrast, the current guidance suggests we have to wait for the soils to be “fully recovered,” ie, spread, or otherwise incorporated into the land, and starting to confer the benefit that was intended, before they cease to be waste.
After all, if we take this school of thought to its furthest extent we would stifle any trade in second hand goods. If I have a chair that is surplus to my requirements I would need to check I am transferring it to an authorised person when I sell it on eBay, charity shops would need to complete waste transfer notes and waste returns. Of course no-one wants that, it would be mad!
Maybe we need to look again at the point at which topsoil for reuse ceases to be waste, basing this on the fact that it is suitable for use without treatment and is certain to be used, rather than following the current line, where surplus soils can only become non-waste after they have been used.
Failing that, perhaps there is room for an Environment Agency position statement or amendment of the U10, U11 exemptions, allowing use of a reasonable amount of 17 05 04, soil and stones from construction sites, or 20 02 02, soil and stones from parks and gardens, providing that it is clean topsoil only and will provide a clear benefit.
It can’t be beyond our wit to come up with a few simple checks to ensure that this valuable resource can be used without excessive legislative burdens whilst at the same time preventing abuse of the system.