Legal considerations for local authorities in food waste recycling

Setting the scene

Every local authority will have a statutory duty to structure their waste collections to allow recycling or composting.

These will need to include individual streams, with an exemption only where a:

• separate collection is technically/economically impractical; and/or
• separate collection leads to no significant environmental benefit.

How can local authorities manage the change and comply with the new statutory duty?

Step 1: Understand the scale

Comprehensive planning at the outset around how to adapt waste collection and disposal is essential. Authorities will need to ensure that they meet their statutory duty, provide the best environmental outcome and deliver value for money.

Step 2: Take stock and consider the options

Each local authority has bespoke arrangements for waste collection and disposal; so there will be no blueprint to follow and what works for one may not work for another. Investing time and resources at the planning stage is therefore essential.

Start with an appraisal of the options and take stock of current waste disposal arrangements at a practical, technical and legal level. Importantly, identify the art of the possible and use the challenge as an opportunity to realise value.

Unless authorities already have separate collection and disposal arrangements for food waste streams - or carry out all food waste collection and treatment in-house, there will be a range of issues to consider at the practical, technical and legal level including:  

• Cost efficiencies - does your existing contract have minimum tonnage or CV guarantees? Will there be breakage costs associated with extracting food waste from any existing contract?
• Compliance with procurement rules, which prohibit certain “significant” changes to procured contracts.
• Achievement of your target objectives.
• How you can ensure the most “upside” for the authority.
• Allowing the authority to manage the interface between providers of services for different waste-streams

All need to be viewed in the round to ensure that the benefits are realisable and affordable.

Step 3: Implement the plan

If the local authority decides to outsource the disposal of separately-collected food waste, it will need a procurement strategy for the new contract and any variation of existing arrangements. Principally this will involve considering:

• the variation mechanism for any existing contract and the contractual consequences of any change - perhaps a new solution will include a profit share for the authority?
• the solution sought – for example, will the authority procure the design and build of new authority-owned disposal assets - e.g anaerobic digestion/compositing facilities, with an operating arrangement? Or, will the authority outsource disposal of the material as a service?
• the type of procurement procedure that the authority will take for the new contract.
• the form of contract that is to be let.

The choice of procurement procedure and form of contract used are critical to driving best value from the procurement. In some cases – likely a minority, it will be appropriate to procure a contract on the local authority’s standard terms using the open procedure.

However, the potential value derived from a competitive tender that involves some dialogue or negotiation over a bespoke form of contract, cannot be underestimated. This is especially true when letting a contract for a new service, where the commercial opportunities need to be explored.

By outsourcing on a balanced contract that allocates risks to the parties best able to control those risks, local authorities could:

• meet their new statutory duties;
• generate an income stream from the resource of food waste;
• contribute towards the generation of renewable energy for the local community; and
• reduce the local authority’s carbon footprint through the reduction of GHG emissions.

You can find out more about food waste recycling and anaerobic digestion here.