Judicial Review ruling: Analysis

The Judicial Review case, which was brought against the Department for Environment Food and Rural Affairs (Defra) and the Welsh Government by six members of the Campaign for Real Recycling (CRR) saw the government defending the use of commingled collections by local authorities.

CRR members pursuing the case against the government include Ardagh Glass, DS Smith Paper, Novelis UK, Palm Recycling, Smurfit Kappa and UK Recyclate.

In setting out their argument last month the claimants said that the ‘legal heart’ of the case was the differing interpretation of the Directive, while the ‘factual heart’ was the desire of waste management companies to preserve a regime where materials are collected together at the kerbside and separated at materials recycling facilities (MRFs) to the financial gain of the waste management firms.

The key battleground in the legal element of the case was the differing interpretation of the wording in articles 10 & 11 of the Waste Framework Directive, and how this was fitted into domestic law under the Waste (England & Wales) Regulations 2011, and its subsequent revision.

Interpretation

Article 10(2) states that: “Where necessary to comply with paragraph 1 (which outlines the requirement for waste to undergo recovery operations) and to facilitate or improve recovery, waste shall be collected separately if technically, environmentally and economically practicable and shall not be mixed with other waste or other material with different properties.”

Article 11 continues: “Member States shall take measures to promote high quality recycling and, to this end, shall set up collections of waste where technically, environmentally and economically practicable and appropriate to meet the necessary quality standards for the relevant recycling sectors.”

The claimants argued that Articles 10 & 11 are worded in such a way as to create the requirement for separate collections of metals, glass, plastics and paper only where it is technically, environmentally and economically practicable (TEEP) for them to be done.

But, Defra submitted that separate collections could only be considered as a legal requirement when it was technically, environmentally and economically practicable for them to be carried out instead of commingled collections, and where they were necessary to facilitate high quality recycling.

In his ruling, Mr Justice Hickinbottom said that the meaning of the Directive is unambiguously clear adding: “the obligation to set up separate collection of paper, metal, plastic and glass from 2015 is restricted by both the practicability and necessity requirements that also restrict the obligation in Article 10(2) to collect separately for the purposes of recovery.”

In essence this means that commingled collections of metal, plastics, glass and paper can continue to be carried out, as long as the quality of the recycled material collected does not compromise high quality recycling or the overall aims of the Directive- to preserve the environment and protect human health.

Localism

Meanwhile, on the factual side of the case, the Judge rejected the argument put forward by the claimants that the Directive requires the decision over what should, and should not be considered TEEP, to be taken out of the hands of local authorities and passed to central government.

Dismissing the CRR’s call for it to be taken out of the hands of councils as ‘uncompelling’, Mr Justice Hickinbottom said that Member States have a broad discretion to choose how European Directives are enacted domestically, and that the UK was unarguably entitled to defer this decision to a local level.

He went on to comment that due to the wide range of circumstances that might dictate whether commingled collections are appropriate, it becomes a matter for a ‘context-specific’ decision by the relevant local authority and by the enforcement agency to decide.

In his assessment of the evidence, he concluded: “The relevant factors will be different in a city centre from a sparsely populated countryside, and may well be different within the same city centre or within the same particular sparsely populated area. One can imagine idiosyncratic collection circumstances (perhaps remote households) where the exercise of assessing the practicability of separate collection will require an especially specific, if not unique, consideration of the relevant factors.”

Finally, the judge rejected the claimants assertion that whether the decision was taken at a central or local government level, the decision maker would inevitably conclude that separate collection is practicable across all circumstances. Commenting that this was a bold contention, Mr Justice Hickinbottom added that the evidence “does not bear out this conclusion.”