Uncertainty over future of Defra TEEP guidance

To date the government has already faced a judicial review led by Andy Moore of the Campaign for Real Recycling over the Department’s original interpretation of the revised Waste Framework Directive.

This subsequently led to the need for greater clarity over the technically, environmentally and economically practicable
(TEEP) provision in determining whether commingling is acceptable.

Defra and the Welsh Government’s interpretation was found to be sound by the courts but the follow on actual implementation of the legislation, with the TEEP provision, from 2015 could yet again prompt legal challenges (see letsrecycle.com story).

However, speaking to letsrecycle.com, a spokesman for the Department explained that the publication of further guidance on TEEP is still under consideration, despite former resource minister Lord de Mauley stating that work on the guidance had been underway as early as June (see letsrecycle.com story).

The spokesman said: The judicial review judgement was clear in confirming that the government had correctly transposed all of the requirements of the Directive. As such we are considering whether further guidance will be useful.

Even though a detailed draft of the guidance does exist, Defra is weighing up if it might be best not to publish guidance and instead let local authorities simply press on with contracts under their own interpretation of the legislation, but with reference to a letter by Lord de Mauley.

Letter

Lord de Mauley, as he left his recycling ministerial position last month, sent out a letter with some guidance in it (see letsrecycle.com story). Some in Defra are thought to believe the letter could suffice and gives the department’s view.

Ultimately, recycling minister Dan Rogerson will have to decide. However, he instantly signalled a stepping back from waste and recycling issues when he took office.

And, officials are thought to be keen to avoid facing another judicial review.

Meanwhile, clarity over the issue is seen to be vital for councils, with the Local Government Association (LGA) writing to Environment Secretary Owen Paterson in the wake of Lord de Mauleys letter urging statutory guidance on the issue.

The LGA claimed that the letter from Defra was an unhelpful contribution to the debate adding that it had only served to cause confusion among local authorities.

Others councils, including the Oxfordshire Waste Partnership, have expressed surprise over the publication of the letter from Lord de Mauley, especially in the absence of any statutory guidance from Defra.

The Partnership said that the letter from the minister was unexpected. OWP is now examining the cost and staffing implications of the minister’s comments, with four of its five collection authorities operating commingled recycling collections.

Much of the debate over kerbside collections and systems has derived from Wales where Mal Williams, formerly head of third sector group Cylch, championed sorting at the kerbside. He was close to Mr Moore of the Campaign for Real Recycling.

The Campaign is still in support of separate sorting at the kerbside and is seen within the recycling sector as quite likely to mount a legal challenge at some point over TEEP.

Challenge

Consequently, any local authority in England and Wales using the TEEP provision could end up in court which is seen as one reason why councils might prefer to receive more advice from Defra.

While the Campaign is based in Wales its reach is across England as well.

In terms of the Welsh Government, it has been closely involved in the issue and it remains to be seen what it might decide to do in terms of guidance.

If Defra does issue guidance it is likely that this would be supported by the Welsh Government and cover England and Wales.