1. The Landfill Levy 

In 2015, the Waste Management (Landfill Levy) Regulations introduced a landfill levy charged at a rate of €85 per tonne of waste disposed (1) of at a landfill for certain classes of waste (previously charged at €75 per tonne of waste). C&D waste was formerly exempt from the landfill levy however, this exemption was disapplied by the Waste Management (Landfill Levy) (Amendment) Regulations, 2024 (the Amendment Regulations) with effect from 1 September 2024. 

Under the Amendment Regulations, certain C&D waste to include, for example, concrete, bricks, tiles, and excavation spoil, will be subject to a lower landfill levy of €10 per tonne of waste disposed  of at a landfill. Where waste consists of material which is subject to the landfill levy and material which is exempt from the landfill levy, the levy will be payable for the entire amount of waste to be disposed of, unless the separate waste fractions can be clearly identified and quantified by the authorised waste disposal facility.

2. The Recovery Levy 

Under the Circular Economy (Waste Recovery Levy) Regulations, 2024 (the 2024 Regulations) a waste recovery levy (2) will be applied to C&D waste including, concrete, bricks, tiles, glass, plastic, and certain soil and stone. Certain waste is exempt from the recovery levy, including, for example, waste wood, defective concrete blocks arising from the Pyrite Remediation Scheme, and non-greenfield soil and stone. 

The recovery levy – which will be charged at €10 per tonne of waste accepted for recovery – will be introduced on a phased basis as follows: 

• 1 January 2025: C&D waste recovered at municipal waste landfills
• 1 September 2025: C&D waste recovered at recovery sites other than municipal waste landfills, authorised to recover over 200,000 tonnes of waste.
• 1 March 2026: C&D waste recovered at recovery sites other than municipal waste landfills, authorised to recover less than 200,000 tonnes of waste under the Waste Management (Facility Permit and Registration) Regulations 2007 (as amended)

Similar to the Amendment Regulations, if waste contains a mix of material that is subject to the recovery levy and exempted waste, the recovery levy will be payable in respect of all of the waste to be recovered, unless the separate waste fractions can be clearly identified and quantified by the authorised recovery facility.

Key Considerations for the Irish Construction Industry 

1. Cost

The landfill levy and recovery levy (together the levies) will increase the cost of development which will be a cause for concern for all stakeholders in the construction industry. 

Contractors with on-going developments who may not have anticipated the introduction of the levies at the time they entered into the building contract may still be able to recover the cost of these levies (or part thereof), depending on the terms of the building contract used for the project. For example, clause 4 of the Royal Institute of Architects Ireland's form of Building Contract (unamended) provides that where the cost of the performance of the contract is increased after a defined date due to a legislative enactment, the contract sum may be varied, as certified by the Architect.

For future projects, we anticipate that contractors will incorporate the cost of dealing with C&D waste as part of the overall contract sum. If the cost of waste charges cannot be ascertained when pricing the contract sum, the parties may insert a clause in the building contract which allow the contractor to seek an increase of the contract sum to account for any charges incurred pursuant to the Amendment Regulations and the 2024 Regulations. In such a clause, employers should: 

• seek that the provision requires the contractor to provide evidence to vouch for its claim;
• seek to impose an upper limit that may be claimed by the contractor having regard to the nature and size of the site and the development; and
• require that the contractor implements a comprehensive waste management plan to ensure that any C&D waste costs are kept to an absolute minimum. 

Conversely, the contractor may seek full reimbursement of the costs incurred depending on the levies ultimately payable. 

2. Prepare a Waste Management and Segregation Plan

To minimise exposure to the levies, contractors should prepare a detailed waste management and segregation plan. The Environmental Protection Agency (the EPA) has prepared Best Practice Guidelines for the preparation of resource and waste management plans for construction and demolition projects which is available here. 

 3. Consider whether the material is a by-product, rather than waste

Contractors should assess whether a material could be classified as a by-product. If the material is a by-product, it is not waste and, therefore, will not attract the levies. To determine whether a material is a by-product, each of the following four conditions must be satisfied: 

• Further use of the material must be certain;
• The material must be capable of use directly without any further processing other than normal industrial practice;
• The material must be produced as an integral part of the production process; and
• Further use of the material must be lawful.

Where, having regard to the above criteria, a contractor decides that a material is a by-product, this decision must be notified to the EPA using the prescribed form which is available here. The EPA will then determine whether the material is a by-product or waste. It is strongly recommended that the material is not used pending the outcome of the EPA's review as, if it is ultimately determined that the material is waste but has not been dealt with accordingly, enforcement action may be taken by the EPA. 

The EPA have developed national by-product criteria for site-won asphalt (road plannings) and greenfield soil and stone which will be helpful for the construction industry. Where the criteria have been satisfied, the by-product must be registered with the EPA via EDEN portal (a by-product notification and determination, as outlined above, is not required).

Conclusion 

The levies have been introduced to encourage the Irish construction industry to reduce, reuse, and recycle as part of Ireland's goal of becoming a circular economy. While the levies will undoubtedly lead to increased construction costs, analysing waste streams with greater consideration of whether waste can be recovered rather than disposed of, and considering whether the waste is a by-product, should help to mitigate these costs.

  (1) "Disposal" is defined in Section 4 of the Waste Management Act, 1996 (as amended) as (a) any operation which is not recovery even where the operation has as a secondary consequence the reclamation of substances or energy, and (b) without prejudice to the generality of paragraph (a), includes the disposal operations listed in the Third Schedule (which includes depositing waste into or on to land (e.g. landfill, etc.)).

  (2) “Recovery” is defined in Section 4 of the Waste Management Act, 1996 (as amended) as (a) any operation the principal result of which is waste serving a useful purpose by replacing other materials which would otherwise have been used to fulfil a particular function, or waste being prepared to fulfil that function, in the plant or in the wider economy; and (b) without prejudice to the generality of paragraph (a), includes the recovery operations listed in the Fourth Schedule (which includes recycling and reclamation of materials).