Defra rows back on TEEP guidance

Defra has confirmed today (20 January) that it no longer intends to publish further guidance to councils on the requirements for separate collection of recyclables.

The decision reverses a pledge made by former Resources Minister Lord de Mauley at the CIWM conference in June last year that the government intended to clarify the conditions of when it was ‘technically, environmentally and economically practicable’ (TEEP) to require separate collections, as specified in the Waste Regulations (Amendment) 2012. At the time, the minister said this would be necessary to “minimise the risk of local authorities facing a challenge”, adding that Defra is “here to help ensure that risk is minimised”.

News that the government has decided to row back from this position broke on Friday, when Dr Colin Church, Defra’s Director of Resource, Atmosphere & Sustainability, stated on Twitter: ‘We don't plan to publish further Government guidance on TEEP in England.’

When contacted by Resource, a Defra spokesperson added: "Local Authorities should be aware of the requirements relating to collection of dry recycling material. We do not believe there is a need to issue further guidance." This lack of clarity could thus leave local authorities open to future legal action over their recycling collections.

The statement follows on from the industry's initial contact from new Resource Minister Dan Rogerson, a letter in which he stated Defra would be ‘stepping back’ from some of its waste policy work.

Despite the ominous letter, many in the industry had hoped the guidance, known to be in draft form, would provide clarification of the conditions under which co-mingled collection of dry recyclables would be permissible. This follows a legal challenge mounted by the Campaign for Real Recycling, relating to the English and Welsh governments’ transposition of the European Community’s revised Waste Framework Directive (2008). The judicial review undertaken by Justice Sir Gary Hickinbottom concluded in February 2013 that the Waste Regulations complied with the EC directive.

Defra ‘fully supports’ separate collection

However, this failed to clarify the meaning of TEEP, and the only steer from government on this issue since has been an open letter to councils from de Mauley shortly before he was replaced as Resources Minister by Dan Rogerson. In it, de Mauley wrote: ‘It appears that some local authorities may be taking the view that co-mingled collections of paper, glass, plastic and metal waste streams will remain permissible in all circumstances after 1st January 2015. I therefore thought it would be helpful now to remind local authorities of the effect of the Regulations.’

The letter concludes: ‘Any local authorities considering new collection or disposal plans should take care to ensure that they are placing themselves in a position to fulfil their legal duties from 2015. This is particularly important for local authorities who may be considering moving away from separate collection, or including glass within a co-mingled stream. Local authorities should consult their own lawyers as necessary, and should keep a clear audit trail given the potential for legal challenge.’

Decision ‘leaves local authorities to grapple with the issue on their own’

Defra’s decision not to provide guidance has provoked criticism from leading industry bodies. Ray Georgeson, Chief Executive of the Resource Association, said: “Even in the era of social media, a Twitter announcement on a Friday night might strike many as an odd way to make such an important policy statement! However, the rumours had been circulating and I am sorry to see them confirmed. Given the amount of time and effort we know Defra officials had put into developing a draft TEEP guidance document and the expectation generated especially within local government, I think the onus has to be on Defra to say a little more about why this is not being released than can be covered in 140 characters.

“At the moment it leaves Lord de Mauley's letter to councils issued just before his departure from the resources brief as the best available signal. As Defra said at the time, this means that separate collection is the default position requiring councils to demonstrate clearly if they believe this not to be TEEP in their situation.”

Barry Dennis, Director General of the Environmental Services Association (ESA), commented: “Defra’s decision not to provide local authorities with further guidance on TEEP is regrettable, as it leaves local authorities to grapple with the issue on their own and may add to the uncertainties they face in renewing waste collection contracts in the coming months. At the least, it would have been helpful if Defra had brought together in one place the various pointers that could assist councils – namely the relevant parts of the Waste Framework Directive, the Commission’s Guidance, the England & Wales implementing regulations, and the Judicial Review judgment.”

Andrew Bird, LARAC Chair added: “It is disappointing Defra will not be issuing guidance for TEEP to local authorities, but not surprising, and at least they have now confirmed their position. As LARAC, we now need to work with our industry partners to offer help and support to our local authority members in producing advice which is consistent and informative.”