Stay of execution: Adjournment of rWFD Judicial Review

On Tuesday 9 December, the Administrative Court in Cardiff ordered that the Judicial Review sought by seven members of the Campaign for Real Recycling (CRR), which was due to begin on 13 December 2011, be stayed until 13 June 2012.

The request to adjourn the case was made by the defendants, Defra and the Welsh Government, which had reconsidered the wording of the item in contention, Regulation 13 of the Waste (England and Wales) Regulation 2011, and decided to rewrite the legislation. Subsequently, they asked the Honourable Justice Lloyd Jones, who was due to preside over the hearing, to adjourn the case while they make the changes.

As originally written by the governments, Regulation 13(2) states: ‘For the avoidance of doubt, co-mingled collection (being the collection together with each other but separately from other waste of waste streams intended for recycling with a view to subsequent separation by type and nature) is a form of separate collection.’
In a statement released shortly before the adjournment, Defra argued the importance of ‘safeguarding flexible household recycling services’, and said: ‘The new draft EU guidance and the Judicial Review process have... highlighted that technical changes are needed to prevent the risk of the legislation being overturned, which could lead to more restrictive recycling collection systems being imposed on local councils and residents.

‘Defra will seek the views of industry, local authorities and other interested parties to inform the change to be made to the legislation.’

Commenting on behalf of those who brought the case, CRR Chair Mal Williams said: “We are pleased to have won this review and I take this opportunity to thank our legal advisors on behalf of our stakeholders. We took no pleasure in having had to bring it, however, and I should add that this adjournment was not our choice in taking the review forward. We would have preferred simply to have seen the contradictory paragraph 13(2) removed from the regulations by the judge. This matter could have been settled by Christmas.”

He added: “Alongside material quality improvement, our other objective in bringing the review was to achieve greater clarity for all stakeholders. That it is not complete will cause more uncertainty for local authorities, contractors and commercial customers currently involved in tendering for recycling services or thinking about making changes to comply with the rWFD. Moreover it seems to us that the proximity of the new hearing date to the summer Parliamentary and Welsh Government recesses means the process could take most of 2012.

“We don’t know how or whom Defra intends to consult in the redrafting. No doubt we will learn more in the New Year and we look forward to that. We do expect Defra to approach the issue of redrafting the regulations with a long-term view, working with the whole UK supply chain, starting with the UK reprocessing companies that buy the collected materials and that brought this Judicial Review, to maximise value from recyclable materials.”
Speaking to Resource, a CRR source also revealed that though the case has been adjourned until 13 June, all parties involved are at liberty to apply – at seven days’ notice – for the case to be heard sooner if they are not satisfied with the process of consultation. The source also expressed doubt about the need for a further consultation, stating that “this was surely a matter of legal interpretation and could be resolved by the parties’ lawyers”.