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Judicial Review Outcome

OUTCOME OF THE JUDICIAL REVIEW ON SEPARATE COLLECTION UNDER THE EU WASTE FRAMEWORK DIRECTIVE

Summary

In a Judgement handed down on Wednesday 6 March 2013, Mr. Justice Hickinbottom dismissed the Judicial Review application brought by UK Recyclate Limited and other reprocessors, and found that Defra and the Welsh Government had correctly transposed the separate collection provisions of the EU Waste Framework Directive (WFD).  

He also ruled that reference of the issues raised by the Claimants to the European Court of Justice was neither necessary nor appropriate.  

The Judge agreed with Defra, the ESA and LGA that Member States are only obliged to introduce separate collection of paper, metal, plastic and glass where this is necessary to facilitate and improve recovery and recycling and where it is technically, economically and environmentally practicable to do so. He considered that local authorities were best placed to weigh up the complex considerations involved in selecting the most appropriate collection method for recycling collections in their areas.

Mr. Justice Hickinbottom heard the case in Cardiff on 25 and 26 February 2013.  He found against the Claimants, and in favour of Defra and WG, on all counts. In his Judgement:

  • The revised Regulations correctly transpose the relevant parts of the WFD as regards separate collection.
  • The obligation on Member States to introduce separate collection for paper, metal, plastic and glass by 2015 is conditional on its being necessary to facilitate recycling and recovery and on its being technically, economically, and environmentally practicable; in other words proportionate to meeting the Directive’s overall objectives.
  • The claim that Defra’s consultations had been flawed was not pursued by the Claimants.
  • Reference to the European Court of Justice was neither necessary nor appropriate since the Claimants’ arguments for a different interpretation of the relevant parts of the WFD could not be accepted on any conventional basis of reasoning.
  • The Claimants’ application for JR was therefore refused.

The Judge also refused the Claimants leave to appeal his decision.

This Judgement is likely to form the basis of Guidance to be issued by Defra in due course explaining the separate collection provisions of the WFD.


Background 


In 2011 UK Recyclate Limited and six other companies involved in reprocessing launched a Judicial Review against Ministers in Defra and Welsh Government (WG). The Claimants argued that the Regulations Defra and WG had made to bring the revised Waste Framework Directive into force in England and Wales were defective, because they did not require co-mingled collections of paper, metal, plastic and glass to be ended by 2015. 

The position of Defra and the Welsh Government is that the Directive does not require co-mingled collections to be outlawed by 2015. ESA, Welsh ESA, and the Local Government Association became Interested Parties to the Judicial Review because the issues at stake are of direct concern to ESA members and to local councils responsible for waste and recycling collection services across England and Wales. During the legal proceedings ESA and LGA were able to offer expert evidence on these issues.

Towards the end of 2011, before the Judicial Review came to Court, Defra and the Welsh Government sought and were granted a six month stay in the JR proceedings so that they could carry out a consultation on a revised set of Regulations designed to follow the wording of the relevant part of the Directive more closely. After consultation Defra and the Welsh Government laid amended Regulations before Parliament and the Welsh Assembly, and these came into force in October 2012.

Despite the fact that the revised Regulations closely followed the wording of the WFD, the Claimants continued with the JR application. They continued to argue that the transposition of the WFD had not been carried out correctly and that separate collection should be applied uniformly across the whole of the UK from 2015.

The outcome of the JR means that co-mingled collection of dry recyclables will remain legal after 2015 where the local council has decided this is the collection method best suited to achieving the WFD’s objectives in the local circumstances.  This is line with the arguments put forward by Defra, the ESA, and LGA throughout.  


A copy of the judgement can be found here


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