19 November 2009

Legal action considered over ‘Schedule 2’ waste

The Audit Commission is considering taking legal action against Somerset's county and district councils in a case which is likely to have wide-ranging implications for how local authorities manage waste from schools and hospitals.

If a legal decision went against us there could be serious implications not just for Somerset county council but for all local authorities

Steve Read, Somerset Waste Partnership

Under Schedule 2 of the Controlled Waste Regulations 1992, waste collection authorities can charge for the collection of certain types of household waste, including some from sources such as universities and camp sites.

Importantly, there is no provision to allow them to charge disposal costs for this material – despite landfill costs rising and the material potentially costing councils hundreds of thousands of pounds to deal with.

Because of this, Defra agreed earlier this year to review the regulations, primarily because it was concerned that if the disposal costs were not borne by the producer, this may discourage them from recycling and reducing their waste in the first place (see letsrecycle.com story). This was welcomed by many councils.

However, at a meeting of the Waste Strategy Board last month (October 22), the department revealed that if any changes to the regulations were made, it had been advised that primary legislation would be needed – which would take several years to come into force. This prompted concern amongst local authorities who wanted to see a “swift resolution” to the issue.

As a result of the delay, the Audit Commission is now considering seeking a Judicial Review against Somerset county and district councils because the councils are currently among a number of local authorities who have been treating certain kinds of Schedule 2 waste as commercial waste and charging for collection, rather than disposing of it for free while the review is undertaken.

This is because their interpretation of the detail of the schedule differs slightly from Defra's.

Somerset has been chosen because there has been an ongoing investigation into the county's policies surrounding Schedule 2 waste since a resident mounted a complaint in 2004 and if it goes to court, this could provide more legal clarity for others.

All parties are trying to find a resolution without a Judicial Review but this has not yet been found.

Speaking to letsrecycle.com this week, a spokesman for the Audit Commission confirmed: “A Judicial Review is under consideration but the Audit Commission is having discussions with the county council and Defra to sort out the problem.”

“We can't comment any further at this stage.”


Steve Read, who is managing director of the Somerset Waste Partnership (SWP) – which manages waste on behalf of the councils in Somerset –  told letsrecycle.com that it was a “very narrow” point of law over which there was a difference of opinion – four words to be precise.

While he said that most of Schedule 2 was uncontroversial, Section 5 states that a charge for collection [only] may be made from ‘waste from a residential hostel, a residential home or from premises forming part of a university, school or other educational establishment or forming part of a hospital or nursing home.'

As most of the rest of Schedule 2 refers to where people live, Mr Read said that the SWP and its lawyers had interpreted ‘premises forming part of' to mean that only residences which were part of such establishments were included, and that all other waste from the institutions should be treated as commercial waste and charged for in full.

However, Defra claims the law means that all waste arising from educational establishments, hospitals or nursing homes should be entitled to free waste disposal, so long as they form part of the premises (see letsrecycle.com story).

Mr Read said that the SWP was hoping that in the next few weeks Defra would be able to clarify with their lawyers whether there will be a short term option to resolve the ‘premises forming part of' issue rather than going to Judicial Review.

Mr Read said: “There is a huge amount of good will to try to find a way to resolve this to avoid costs and a potentially protracted legal process. At the end of the day we think this is the right interpretation of the law.

He added: “If a legal decision went against us there could be serious implications not just for Somerset county council but for all local authorities.”


During this month, Defra is holding series of workshops to discuss the Schedule 2 review with stakeholders. These are taking place in Bristol and Leeds. By January or February 2010 it expects to launch a 12-week consultation on a “package of options” to amend the legislation.

By June 2010, it expects to announce the most viable option for change in light of the consultation.

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