Judicial Review: co-mingling permissible

Councils running co-mingled collections after 2015 will be compliant with EC law, according to a ruling handed down in the Birmingham High Court this morning (6 March). 

A Judicial Review, brought by UK Recyclate and five reprocessors, into the Department for Environment and Rural Affairs’s (Defra’s) and the Welsh Government’s transposition of the revised Waste Framework Directive was heard by Sir Gary Hickinbottom in Cardiff last week. The dispute centred on whether paper, metal, glass and plastic recycling collections are required to be separated at source by 2015. 

Handing down his judgement today, Sir Gary Hickinbottom stated that “the obligation to set up separate collection of paper, metal, plastic and glass from 2015 is restricted by both the practicability and necessity requirements”. This, the defendants have successfully argued, is reflected in the amended version of Article 13 of the Waste Regulations, which states separate collections are required when they are necessary to ‘facilitate or improve recovery’ and are ‘technically, environmentally and economically practicable’ (TEEP). 

The judge further noted that “it would be very strange indeed if the European Parliament and Council had determined in November 2008 that it was necessary for the four relevant streams of waste to be separately collected throughout the Union”. 

He further noted that the applicability of TEEP “is a matter for a context-specific decision by the relevant local authority and by the enforcement agency”, adding that “the directive, clearly and unarguably, leaves the decision as to practicability to the national authorities of each member state: and the United Kingdom has left such decisions to local authorities, to be policed by the Environment Agency”. 

The claimants’ application to have the case referred to the European Court of Justice on the grounds that wording of the rWFD was not clear has also been turned down. 

In summary, Hickinbottom said: “In my judgement, the interpretation of those Articles 10 and 11 is clear, and clear to the extent that the claimants’ argument for a different interpretation could not be accepted on any conventional basis of reading.” 

Reaction

Speaking of the judge’s decision, a Defra spokesperson said: 'This ruling shows our interpretation of the revised Waste Framework Directive is right. It recognises that it’s for local authorities to decide, within the law, whether separate recycling collections are necessary and practicable.

'We will continue to work with local authorities, the waste industry and other partners to provide waste services that meet the needs of local communities and improve the quality of recycling.'

Indeed, the news was ‘great news for councils’ according to Councillor Mike Jones, Chair of the Local Government Association’s Environment and Housing Board. He said: “The LGA has fought long and hard and we are delighted that the matter has now been resolved. It’s time for the waste sector to draw a line under this and let councils get on with the job of providing residents with an efficient, environmentally responsible and value-for-money waste service.”  

Today’s verdict has also been welcomed by the Environment Services Association (ESA), which represents around half of all material recovery facility operators in the UK. Barry Dennis, Director General, said: “The ESA has always believed that both the directive and the revised Defra regulations recognise that decisions over local collection methods are complex and that local discretion over the format of recycling collections is needed to ensure that the directive’s objectives are met. We are therefore pleased that the judge, having examined the matter in great depth, has taken the same view.

“ESA members can now get on with the challenge of working with their local authority customers to select the most appropriate collection system locally. This is vital if we are to continue to make significant increases in recycling rates, so that as much of our waste as possible is returned to productive use.” 

Appeal

However, the reaction from the Campaign for Real Recycling (CRR), which includes the reprocessors that sought the Judicial Review, indicated that the process might not yet be concluded. 

Commenting for the CRR, Chair Mal Williams said: “We are very pleased with the level of awareness of the importance of material quality, particularly among local authorities, that has been raised by the advent of this review over the last two years. However, we feel this verdict is a judgement against material quality and progress towards a recycling society. We are, of course, extremely disappointed by it. 

“We are of the view that the current England and Wales Waste Regulations are not an accurate transposition of the revised Waste Framework Directive. Separate collections, as required by the directive, and favoured by the Wales Waste Strategy backed by detailed independent evidence, are the best way forward in both economic and environmental terms. So it remains our position that the current regulations fail sufficiently to facilitate or specify separation. 

“The claimants are currently in discussion with their legal advisors and are considering an appeal against the judgement.”

Read the judge’s full verdict.