Co-mingling Judicial Review verdict considered

The hearing of a challenge to Defra and the Welsh Government’s transposition of the revised Waste Framework Directive concluded its hearing in Cardiff’s High Court yesterday (26 February). 

Sir Gary Hickinbottom, the presiding judge, has now retired to consider his verdict, which, it’s expected, will shape the UK’s approach to recycling collections for years to come. Judge Hickinbottom said that the case centred on “a matter of pure [legal] construction”. 

Article of faith 

The case, brought by claimants UK Recyclate and five reprocessors, has argued that the EC directive requires local authorities to operate kerbside sort in all circumstances where this is technically, environmentally and economically practicable (TEEP). 

Resuming on the second day of the Judicial Review, Timothy Straker QC concluded the case for the claimants, focusing on the definitions of ‘high-quality recycling’ and TEEP. He also argued that separate recycling did not mean a ‘one size fits all’ approach, noting there were many ways this could be achieved. 

In response, Clive Lewis QC, representing both governments defending the transposition, claimed that it was ‘an article of faith’ that separate collection of recyclables is environmentally better. 

Lewis argued that the case was subject to a principle of proportionality, allowing member states to determine how a directive is ‘applicable and necessary’, which, he added, gave governments room to determine the type of recycling collection method. This proportionality, the defence claimed, should extend to the applicability of the TEEP requirement, allowing latitude for its appropriateness to be determined at a local level. Furthermore, the determination of whether separate collection of recycling was both necessary and TEEP would be a matter for legal challenge after 2015. 

Concluding, Lewis said he believed the government had transposed the European directive ‘word for word’, noting that determination of whether local authorities’ recycling collection systems satisfied the Waste Regulations would be a matter for the Environment Agency.

Acting on behalf of the Environmental Services Association, David Hart QC addressed issues of quality, quantity and cost in relation to differing recycling collection systems. With regard to ‘high-quality recycling’, he said that commercial specifications are set by the customer buying recyclate, and it was up to them to determine the level of contamination that was acceptable. Hart also contended that the co-mingled collection was now cost-effective, as gate fees at materials recovery facilities (MRFs) had fallen to negative levels, resulting in collectors receiving up to £30 per tonne for dry recyclables. 

Referral to Europe 

Regarding the application to refer the case to the European Court of Justice (CJEU), Hart noted that this process would in all likelihood take a further 18 months. This concern was similarly raised by counsel for the Local Government Association (LGA), Karyn Steyn QC, who said that delay would ‘cast a shadow in the run up to 2015’.

Hart added that the claimants had originally opposed the government’s application to postpone the hearing from December 2011 partly on the basis that delay would be unwelcome for local authorities. On these grounds he stated the judge should now ‘show discretion’ regarding any thoughts of now referring the case. 

A matter of construction 

As proceeding approached a conclusion, both sides stated that the interpretation of the European directive was perfectly clear, prompting the judge to observe, “everyone says it’s clear, just it’s clear in very different ways”. 

Addressing Tim Straker QC, during the claimants closing argument, Hickinbottom noted: “It strikes me there is very little difference between you and the other parties, the issue is the wording of 10(2).” He added that the case would not be decided by the competing interests of the parties involved, but rather the case concerned “a matter of pure [legal] construction”. 

Article 10(2) of the revised Waste Framework Directive reads: 'Where necessary to comply with paragraph 1 and to facilitate or improve recovery, waste shall be collected separately if technically, environmentally and economically practicable and shall not be mixed with other waste or other material with different properties.' 

The issue at stake is whether, if TEEP, separate collection is necessary only if it is required to facilitate or improve recovery. 

The judge’s decision is expected to be announced in the next few weeks.