Local authorities and recycling collections

Waste landfill iStock 000005619965XSmall 146 x 219A High Court ruling on co-mingled recycling collections has been welcomed by local authorities. Ruth Murray explains why.

In 2011 the Campaign for Real Recycling ("CRR") brought an application for judicial review of the Waste (England and Wales) Regulations 2011 (as amended) (the "Waste Regulations 2011") against the Secretary of State for Environment, Food and Rural Affairs and the Welsh Ministers (the "Defendants").

The CRR is a campaign group which consists of several of the UK's leading waste reprocessors, community recycling groups and the Friends of the Earth. They made their application for judicial review on the basis that, when drafting the Waste Regulations 2011, the UK Government failed to properly and accurately transpose European Directive 2008/98/EC (the "Waste Framework Directive").

The Waste Framework Directive, introduced a target of 50% of waste to be recycled by 2020 and imposed, in Article 11(1) an obligation on EU Member States to introduce separate collection of paper, metal, plastic and glass by 2015 (the "Separate Collection Obligation"). The Separate Collection Obligation is expressly subject to the provisions of Article 10(2) of the Waste Framework Directive, which the CRR contended had been improperly and inaccurately transposed into the Waste Regulations 2011.

The CRR argued that Article 10(2) of the Waste Framework Directive imposed a single limitation on the application of the Separate Collection Obligation, being that separate collection must be "technically, environmentally and economically practicable" (the practicability requirement).

The Defendants on the other hand submitted that, in addition to the practicability requirement, Article 10(2) provides that the Separate Collection Obligation will only apply if separate collections are necessary to facilitate and improve recovery of waste in accordance with the waste hierarchy (the necessity requirement). The interpretation put forward by the Defendants is reflective of the approach taken in the Waste Regulations 2011 (as amended by the Waste (England and Waste) (Amendment) Regulations 2012).

It also worthy of note that the CRR submitted the following further arguments for consideration by the Judge:

  • co-mingled recycling does not constitute a form of separate waste collection, as stated in the Waste Regulations 2011, nor is it capable of meeting the requirements of the Waste Framework Directive; and
  • the decision as to whether to impose separate collections across England and Wales was a decision that should have been made by the UK Government (and accordingly that the UK Government had erred in leaving this to the discretion of regional and local authorities). The CRR argued that it was in the UK's interest to introduce the separate collection of paper, metal, plastic and glass as this produces a higher quality recyclate that could be more efficiently utilised by the recycling industry and would therefore be more profitable. Consequently they believed that such an important decision should have been taken by the UK Government.

Following a hearing in Cardiff on 25 and 26 February 2013 and considering the evidence adduced by both parties, on 6 March 2013 Mr Justice Hickinbottom announced that he was satisfied that the Waste Regulations 2011, as they currently stand, adequately and accurately transpose the requirements set out in the Waste Framework Directive and that to subject them to judicial review would be unnecessary. Therefore the CRR's application for judicial review was dismissed.

Justice Hickinbottom concluded that the requirement in the Waste Framework Directive to establish separate collections was restricted by both the necessity and practicability requirements and therefore that both of these would need to be considered by regional or local authorities when they were looking at whether or not the systems that they currently have in place to collect waste meet the requirements set out in the Waste Regulations 2011. He further clarified that he felt that regional and local authorities were best placed to make any decisions with regards to their local area.

He concluded his judgment by stating that "the interpretation of those Articles 10 and 11 is clear; and clear to the extent that the claimants’ argument for a different interpretation could not be accepted on any conventional basis of reasoning.”

The court did not issue a finding as to whether or not it considered that the separate collection of waste could be considered practicable for the purposes of the Waste Framework Directive if implemented throughout England and Wales. However, the court quite rightly recognised that waste collection requirements are variable depending on location and, in this respect, agreed with the Defendants that the decision was most appropriately left to regional or local authorities with knowledge of the unique requirements of their area. Local authorities will be relieved that they have retained the autonomy to decide the best method of collection in their own area, and the certainty that this brings with it.

The Claimants sought permission at the end of the hearing to refer the matter to the European Court of Justice as they felt that the Waste Framework Directive required further clarification. Mr Justice Hickinbottom refused this application.

The Claimants' legal teams later announced that they do not intend to appeal the decision but stated that they were pleased that their application had led to the Waste Regulations 2011 being revised (via the Waste (England and Wales) (Amendment) Regulations 2012)) to remove the statement that co-mingled collection is to be considered a form of separate collection.

The court's decision has been welcomed by many of the major players in the waste industry and also by many local authorities. The President of the Chartered Institute for Waste Management ("CIWM") has been reported as saying that the decision is an example of "common sense prevailing" and that as a consequence of the decision the CIWM would be using the decision as a "springboard for action".

This positive reaction from the waste industry reflects both cost and environmental considerations:

  • From a cost perspective, the imposition of separate collections in areas where co-mingled collections are currently undertaken is likely to necessitate significant expenditure on the part of the waste contractor responsible for that area, therefore calling in to question whether such a measure could be described as economically practicable for the purposes of the Waste Framework Directive. For example, waste contractors may be required to purchase or lease numerous separate waste containers for each household and either convert collection vehicles to facilitate the separate storage of waste or purchase or lease new vehicles which are configured for separate collections. Note that the CRR has previously suggested that it would be possible for the additional costs incurred in performing separate collections to be offset by the increased profit derived from the higher quality recyclate that will be recovered. However, there is a lack of evidence at present to support this assertion, meaning that many local authorities will remain of the view that the implementation of separate collections is economically impractical (given that the relevant local authority will ultimately have to bear the associated costs).
  • From an environmental perspective, the imposition of separate collections may in some instances necessitate the performance of additional collection runs, therefore calling in to question whether such a measure could be considered to be environmentally practicable for the purposes of the Waste Framework Directive.

From the perspective of local authorities, the court's decision will ensure that local authorities will not be forced to engage in expensive and time-consuming renegotiation of waste collection contracts.  As a result, many local authorities will be able to divert the resources which would have been used in implementing separate collections into maximising the quality and quantity of recyclate recovered from their current collection system.

This view was endorsed by the Chair of the Local Government Association's Environment and Housing Board, Councillor Mike Jones, who said following the announcement of the decision that "it's time for the waste sector to draw a line under this and let councils get on with the job of providing residents with an efficient, environmentally responsible and value for money waste service".

In any event, the United Kingdom seems to be close to achieving the targets set by the EU of 50% of waste to be recycled by 2020 using current methods of collection. In 2011/12 Defra reported that 43% of household waste was recycled [Source: Defra.gov.uk].

With this in mind, some in the waste sector have suggested that implementing separate waste collections could actually have an adverse impact on recycling rates (given the additional time required to sort recyclate), meaning that the UK would be less likely to achieve the required targets by 2020 if separate collections were universally adopted.

This only serves to confirm that, at present, there is no general consensus on how best to structure waste collection activities in order to give effect to the Waste Framework Directive, meaning that this debate is likely to continue into the foreseeable future.

Ruth Murray is a partner at Ashfords. She can be contacted on 01392 333857 or by This email address is being protected from spambots. You need JavaScript enabled to view it..

This article was first published in Public Sector Sustainability.