In a much anticipated ruling for the waste sector, the High Court on Wednesday (6 March 2013) ruled in favour of Defra and the Welsh Government in the judicial review mounted by the Campaign for Real Recycling (CRR). The ruling has been well received by local authorities and many waste management companies; however, many recyclers and reprocessors are disappointed with the news.
The main issue for the court to determine was whether the revised Waste Framework Directive 2008/98 ("WFD") had been properly transposed into domestic law insofar as it requires the separate collection of certain types of waste, namely, paper, metal, plastic and glass by 2015. CRR argued that it has not been properly transposed and sought a reference to the European Court of Justice.
The seven claimants that make up CRR are all commercially involved in recycling and reprocessing, rather than a group of individuals. They include a paper mill with a recycling division, a waste paper supplier which produces paper for newspapers and an aluminium manufacturer.
European directives are not directly applicable, i.e. they require a domestic rule by each Member State to enforce a directive. The WFD needed to be brought into force by each Member State by 12 December 2010. The WFD was brought into force by the Waste (England and Wales) Regulations 2011 (SI 2011/988) ("the 2011 Regulations") on 29 March 2011.
CRR argued in its original proceedings that the 2011 Regulations failed to properly transpose the obligations under Article 11(1) of the WFD, namely that "co-mingling" and "separation" were mutually exclusive concepts. After CRR was given permission to proceed with the judicial review, the Defendants made an amendment to the 2011 Regulations. After reviewing the amendment, CRR was of the opinion that it too failed properly to transpose the WFD.
The key points from the decision are that:
- the revised WFD had been properly transposed into domestic law by the amended 2011 regulations;
- the obligation to set up separate collections of paper, metal, plastic and glass from 2015 is only necessary where it is technically, environmentally and economically practicable (“TEEP”);
- it is correct that local authorities make decisions regarding TEEP and whether separate collections will be made in their areas, as they are uniquely placed to take into account local circumstances;
- a reference to the European Court of Justice was not necessary or appropriate.
CRR argued that materials collected together at the kerbside through commingling and separated at materials recycling facilities (MRFs) produce an unsatisfactory reject-rate of around 10%. Had Hickinbottom J sided with CRR, the consequence could have obliged municipal waste collection to be made in separate waste streams to reduce the 'reject-rate'. This obligation would have fallen on local authorities who would either have:
passed it on to householders through requiring them to separate their waste, or
to its waste collection service provider to organise separation arrangements at the kerbside.
In such a hard-fought case, it is likely that CRR will appeal this decision. Although, both parties are said to be reviewing the judgment and weighing up their options – watch this space. For now, commingled waste collections are permissible in England and Wales under EU law.
Bevan Brittan has a market leading Waste and Energy Team that advises local authorities and many private sector organisations in the waste sector on all aspects of waste and environmental services including collection, management, disposal and energy generation. If you are affected by the outcome of this decision, please get in touch with one of our experts below.