The Authority believes there are “serious flaws” in Defra's guidance on the scheme – which limits waste disposal authorities in the amount of biodegradable waste they can send to landfill each year – is “inconsistent” with the legislation behind the scheme, the WET Act 2005.
” Defra guidance is not in line with the definition of municipal waste as laid out in the Act. “
– Colin James, WRWA
They have secured a legal opinion that suggests the guidance “involves a clear misconstruction of the legislation and that Defra has, accordingly, not interpreted the law correctly”.
The Authority said Defra's guidance takes a “much wider definition” on what should be counted as obligated waste under the LATS limits each year compared to the actual legislation, the WET Act.
For the WRWA alone, the discrepancy between the two definitions could be the difference in trading and penalty costs of around 2 million.
Colin James, general manager at the Authority, told letsrecycle.com yesterday: “Defra guidance is not in line with the definition of municipal waste as laid out in the Act – it says LATS covers all waste under the control of a waste disposal authority, whereas the Act says household waste or waste similar to household waste.”
Definitions
Reflecting the EU Landfill Directive, biodegradable municipal waste is defined in Section 21(1) of the WET Act as: “(a) waste from households, and (b) other waste that, because of its nature or composition, is similar to waste from households.”
In Defra's guidance, however, it defines municipal waste as “all waste under the control of local authorities be they waste disposal, waste collection or unitary authorities”. WRWA officers said Defra had concluded that municipal waste includes “all household waste, some commercial waste and where appropriate some industrial waste”.
Taking an example year – 2008/09 – officers said under Defra's guidance the Authority would have a cumulative shortage of 4,397 tonnes of landfill allowances. Under the WET Act definition, however, the Authority would have a cumulative surplus in allowances of 46,505 tonnes.
In 2010, the Authority is predicted to have a shortage of allowances, but the difference between the two definitions would be around 13,000 tonnes, officers said, which “could therefore equate to an additional 2 million being payable in trading costs or penalty fees.”
Principle
Officers said other waste disposal authorities also share the WRWA's view that “as a basic principle all waste in the possession or control of a local authority cannot be similar to that from households”.
There are also uncertainties over how waste arisings from out-sourced contracts – such as housing, highways and parks activities – are controlled by the waste collection authority and therefore are outside of the disposal authority's control as defined in LATS.
Legal action
Mr James played down the seriousness of the issue, stating it was something the Authority was hoping could be solved through the meeting with Defra.
However, in officers' reports to their councillors within the Authority, it has been suggested that if agreement is not reached, it could be up to the courts to decide.
WRWA officers met Defra in October to discuss its position, warning the Department that the Authority “was prepared to consider challenging DEFRA’s position formally if that proved necessary”.
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However, Defra then wrote to the Authority warning that any legal action could “take a
significant amount of time to resolve, particularly if the matters were to be referred to the
European Courts”. WRWA are now being advised by their officers that rather than seeking court action, the “best way forward is for further discussions to take place”.
The meeting next week should see legal advisors present on both sides, with hopes of exploring “possible options to resolve the issues without the need to resort to formal challenge”.
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