Edinburgh's garden waste charge could be illegal and force council to pay millions back to residents, says Tory councillor

Iain Whyte claims the charge - which the Tories have branded "the garden tax" - flies in the face of legislation specific to Edinburgh which says that garden waste should be treated as household waste. And Cllr Whyte points to another law which says there can be no charge for household waste.

The garden waste charge was introduced in October 2018 amid lots of controversy. It was initially set at £25 a year, then increased to £35 in 2021 and this year it has gone up again to £40. It is estimated to bring in up to £1.4 million a year to the council.

The charge for garden waste collections was introduced in 2018. Picture: Jane Barlow | TSPL

At last week's transport and environment committee, convener Stephen Jenkinson accepted a call by Cllr Whyte for officials to look into whether the charging regime for garden waste collection complies with the law and report back on any risk for the council in continuing to charge for the service, and any actions required to make it legally compliant.

The two laws cited by Cllr Whyte are the 1982 Civic Government (Scotland) Act, which says councils can charge for trade waste "but may not include provision for such payment for the collection or disposal of household waste", and the City of Edinburgh District Council Order Confirmation Act 1991, legislation which brings together a wide variety of legal requirements affecting the city in one place.

It says: "In its application to the council, the definition of “household waste” contained in subsection (5) of section 124 of the Act of 1982 shall be deemed to include garden refuse."

Tory group leader Iain Whyte claims the charge for emptying brown bins could be illegal | Johnston Press License

Cllr Whyte told the Evening News: “I’ve tried to raise this before, but I’ve never had an answer. The Confirmation Act states that the council must treat garden waste as household waste. And the Civic Government Scotland Act say that you cannot charge for the collection of household waste.

“As I understand it, both piece of legislation are still in force. So it could well be that the council had no power to implement the garden tax for collecting brown bin waste.

“Unless they can point to a different piece of legislation that annuls this, one of the first questions is: Do we have to pay the money back to the residents who've paid for it?”

Cllr Jenkinson said he had agreed to Cllr Whyte’s request in order to clarify the situation. He said: “Officers themselves are comfortable that the position is legal. However, I don't think it does any harm to get that legal position absolutely clarified.

“Cllr Whyte’s understanding of one piece of legislation is that it is all treated the same. However, I believe there is a counter-argument that there is another piece of legislation which says the opposite.

“We're not the only local authority in Scotland or the UK to charge for picking up garden waste. I would be surprised if there is a question mark over its legality because it has been in place for a number of years now, but I'm no lawyer so it seemed the right thing to do to ask the question and get the clarity he's looking for.”