The claimantsbehind the Judicial Review over commingling have applied to re-launch their legal challenge.
Lawyers representing the claimants told letsrecycle.com yesterday (September 25) that an application was submitted last week to Cardiffs Administrative Court for permission to restart the Judicial Review against Defra and the Welsh Government’s Waste (England and Wales) Regulations.
The Judicial Review is significant for local authorities because it will determine whether councils can continue to collect recyclables commingled, as the current Waste (England and Wales) Regulations allow.
The claimants, who are reprocessors concerned about commingled material quality, claim this does not accurately reflect requirements in European legislation for member states to introduce separate collections of paper, plastics, glass and metals by 2015.
A Judicial Review was granted to the claimants last year and a hearing scheduled for December 2011 but this was adjourned for six months while the regulations were changed to bring them more in line with European law. The amended regulations were laid in July 2012 however the claimants are still unhappy (see letsrecycle.com story) and are therefore applying to change the grounds of their claim. This is necessary because the regulations have been changed.
Hilary Harrison, from solicitors Anthony Collins, who is acting on behalf of the claimants, said: We have made an application to the court for the proceedings to proceed on the grounds that the regulations are still not compliant with the Directive. It was submitted to the court on the 18th or 19th of September.
We have set out in our application that this is seen as a formality and that if we found the final regulations to be non compliant our position was always going to be to continue [with the Judicial Review].
Defra
Defra and the Welsh Government may now argue that there is no case to answer and push for the court to deny permission for the Judicial Review. However, it is thought that the recent ministerial changes at Defra may cause some delay in the department deciding on how it will proceed. Other interested parties include the Local Government Association (LGA) and Environmental Services Association,will also benotified.
No timetable has yet been set but sources have suggested that, if the Judicial Review is granted, it is unlikely to reach court before November or December.
Whatever the outcome, the continued delay is causing worry for many local authorities who are trying to plan budgets and services.
Commenting on this, one industry commentator said: The uncertainty is not helpful or local authorities. Everyone expected this to be sorted out by now.
“Even when the Judicial Review is finally resolved Defra will have to issue guidance explaining what high level terms in the regulations such as technically practicable mean and will need to spell out what councils who want to continue commingling have to do to comply.
Letter
The application to restart the Judicial Review comes after the LGA wrote to all local authority chief executives earlier this month accusing the claimants and their lawyers of appearing to attempt to stir up up local authority concerns over commingled collections before the matter reaches court.
An article written by Ms Harrison and published in the Municipal Journal on August 23 warned that continued commingling was likely to become impossible for hundreds of local authorities if Defra and the Welsh Government were to comply with European law.
The LGA claimed the piece was misleading and that local authorities should not let it scare them into changing its choice of recycling collection method.
But, Ms Harrison said that the letter appears to be disputing semantics, rather than actual factual errors.
In the letter, LGA chief executive Carolyn Downs said: It has been brought to my attention that an article printed in the Municipal Journal (MJ) on 23 August 2012 contains a number of factual inaccuracies and misleading statements. It appears to be intended to influence the behaviour of councils in advance of the outcome of a judicial review between UK Recyclate and others (claimants) and Defra and the Welsh ministers (defendants) with regard to the Waste (England and Wales) Regulations 2011.
She added: The MJ article therefore appears to be an attempt by the claimants to stir up local authority concern before the case even gets to a hearing, and suggests that they are arguing from a position of weakness.
Ms Downs stressed that the amended the Waste (England and Wales) Regulations still allowed for commingled collections.
She said: Those Regulations continue to allow for co-mingled collection where appropriate for local circumstances. They are the law of the land unless a court says otherwise. The LGA believes that councils and the Government should act in line with the existing law, and with the decision of the court when it is made, rather than being influenced by arguments made by one of the litigants with a commercial agenda.
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