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Outcome of judicial review on transposition of the EU Waste Framework Directive into the laws of England and Wales

20 March 2013 #Public Sector


On 6 March 2013, Mr Justice Hickinbottom gave judgment in the application for judicial review by a number of Claimants into whether or not the Government has correctly transposed the EC Waste Framework Directive (2008/98/EC) into domestic law.

Background

The Claimants were all organisations involved in the commercial recycling of waste into new products.  They were all members of the Campaign for Real Recycling and the judge noted that each strongly believed in the environmental benefits of recycling.  There were also a number of interested parties representing local and unitary authorities in England and Wales, and also a trade association representing a significant number of companies who collect waste. 

The defendants were the Secretary of State (responsible in England for the environment) and the Welsh ministers (responsible in Wales).

The Waste Framework Directive was made pursuant to Article 192 of the Treaty on the functioning of the European Union and the key objective of it is to preserve, protect and improve the quality of the environment and health.  The Waste Framework Directive sets out the principles which member states should adhere to when, amongst other things, collecting and handling waste.  The Directive was originally transposed into the legislation of England and Wales by the Waste (England and Wales) Regulations 2011 (SI2011/988) (the 2011 Regulations). 

The Claimant was granted permission in September 2011 to bring judicial review of the original version of Regulation 13 of the 2011 Regulations on the basis that it claimed it incorrectly transposed part of Article 11(1) of the Waste Framework Directive requiring separate recycling collections.  The Government accepted that some changes needed to be made to this Regulation and so the original proceedings for judicial review were put on hold until the amendment was introduced.  In October 2012, the Waste (England and Wales) (Amendment) Regulations 2012 (SI2012/1889) (the 2012 Regulations) came into force.  They amended Regulation 13 of the 2011 Regulations which now states that with effect from January 2015, those collecting waste paper, metal, plastic or glass, should do so by way of separate collection, where that separate collection,

(a) is necessary to ensure that waste undergoes recovery operations in accordance with Articles 4 and 13 of the Waste Framework Directive, and to facilitate or improve recovery, and

(b) is technically, environmentally and economically practicable.

The Claimant continues to challenge that transposition claiming that it still failed to properly transpose the Waste Framework Directive. 

It was not in dispute that Article 11(1) requiring separate collection was only necessary if it was technically, environmentally and economically practicable. What was in dispute is whether Article 11(1) requiring separate collections, was only required if it was necessary to ensure that waste is recovered. 

The question was therefore whether it was a two-fold test or not.  The Claimants argued that the only element was practicability, whereas the Defendants argued that the test was both as to necessity and practicability.

Judgment

Mr Justice Hickinbottom took the view that the Claimant’s construction of the relevant Article in the Waste Framework Directive could not be correct.  On that basis, the Government had correctly transposed the Waste Framework Directive into law.  The judge took the view that the primary objective of the Waste Framework Directive was not the separate collection of waste, but the protection of the environment and human health.  The methodology of collection was directed towards the best methods of recovery which in turn assisted in achieving the primary objective.  On that basis a two-fold test would apply for both practicability and necessity, so there should therefore, not be any need to collect the waste streams separately if collection was not necessary to achieve the higher objectives of the Directive.

The court also heard evidence from local authorities as to the matters that they would consider when deciding whether there was a need for separate collections.  In particular they considered whether separate collections (undertaken potentially by separate vehicles) would overall be detrimental to the environment because of the higher carbon emissions in such collection system; alternatively whether the amount of recyclables collected might in fact be considerably higher if waste streams were co-mingled. They also would weigh this up against any levels of contamination that co-mingling might cause.  The judge commented that this evidence would go both to practicability and necessity.

On that basis, therefore, whether or not source segregated collection is practicable and necessary will depend on the particular local circumstances attributable to any local authority, the technology used and the methodology of collection.

Any local authority which has co-mingled waste collections should consider the particular circumstances of the locality and whether or not that collection is compliant now that the requirements for the Regulations have been clarified. 

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Kirstin Parker

Kirstin Parker
Senior Consultant

E: kparker@clarkslegal.com
T: 0118 953 3936
M: 07876 740 984

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