High Court upholds Defra's approach to separation of recyclables

The Court dismissed a judicial review application brought by a number of reprocessing firms under the umbrella of the Campaign for Real Recycling (CRR), which had claimed that the UK and Welsh Governments' approach to the European Commission's revised WFD was defective.

The judge also refused the CRR leave to appeal to the Court of Justice of the European Union (CJEU) for clarification of the rules, stating that the Commission's approach was "clear".

Defra had already amended the wording of the Waste (England and Wales) Regulations 2011, which implemented the requirements of the directive into UK law, as a result of the impending challenge. The Waste (England and Wales) (Amendment) Regulations 2012 came into force on 1 October 2012.

The High Court found against the CRR on all counts and instead upheld Defra's interpretation of the revised WFD. The Court's ruling endorses Defra's position that sending mixed dry recyclable (co-mingled) municipal waste to a centralised recovery facility is permissible under the directive and that the revised 2012 Regulations properly transpose the WFD.

"This decision offers some long awaited certainty for waste managers, but only to a point," said waste law expert Gordon McCreath of Pinsent Masons, the law firm behind Ou—Law.com. "The reprocessors and environmental organisations behind the Campaign for Real Recycling will obviously be disappointed. However the decision has been warmly welcomed by local authorities and general waste management companies. Provided they satisfy the tests, they can continue with co-mingled collections and operating materials recovery facilities to separate out waste streams for recycling."

"However they still have to satisfy the tests," said McCreath. "Next steps are to keep an eye out for are any appeal by CRR – which seems less likely given the court’s emphatic rejection of a reference to Europe – and the production of the DEFRA guidance. After that, it’ll be interesting to watch how many local authorities decide that separate collection is technically, environmentally and economically practicable in their area and how many stick with the status quo. "

The revised WFD imposes a duty on collectors to keep waste paper, metal, plastic and glass separate where this is "necessary to ensure that waste undergoes recovery operations" in accordance with its provisions. However, collectors are exempt from the separation requirement if they can prove that their approach will achieve certain quality standards, or if establishing a separate collection system is not "technically, environmentally and economically practicable". The revised Waste Regulations 2012 replicate the wording of this exemption, and Defra is due to publish guidance on its interpretation of the phrase shortly.

"This ruling shows our interpretation of the revised Waste Framework Directive is right," a spokesperson for the Defra said. "It recognises that it's for local authorities to decide, within the law, whether separate recycling collections are necessary and practicable. We will continue to work with local authorities, the waste industry and other partners to provide waste services that meet the needs of local communities and improve the quality of recycling."

In his judgment, Mr Justice Hickinbottom said that local authorities were best placed to decide whether separate collections were "both practicable and appropriate" for their areas, or whether their own arrangements met the requirements of the directive. He said that although the revised directive "clearly encourages" separate collections, there was no evidence to support it being "technically, environmentally and economically practicable" to impose separate collections across England and Wales.

"I accept that separate collection has a number of distinct advantages over co-mingled collection of waste," he said. "But those advantages are not determinative of the question as to whether separate collection is technically, environmentally and economically practicable: they are just one factor (albeit, perhaps, often an important factor) in the balancing exercise that the practicability test requires."

"[O]n these issues the Directive, clearly and unarguably, leaves the decision as to practicability to the national authorities of each Member State: and the United Kingdom has left such decisions to local authorities, to be policed by the Environment Agency ... On the evidence before me, I am entirely unconvinced that separate collection of the four streams of waste is practicable in the Directive sense in all circumstances of collection throughout England and Wales," he said.

He added that the separate collection of waste was a means towards the purpose of the directive, which was to better protect the environment and human health, rather than the separate collection of waste itself. It would be "very strange indeed" if the European Commission had mandated separate collections of the four types of waste across the EU, he said.

"Separate collection is, at most, a means to better recovery – which is itself a means to the achievement of that primary objective," he said. "Insofar as prioritising recycling over disposal and some other forms of recovery is an objective of the Directive, it is of course subsidiary and subservient to the higher objective of 'the best environmental outcome'."

"I find that the interpretation of [the directive] is unambiguously clear: the obligation to set up separate collection of paper, metal, plastic and glass from 2015 is restricted by both the practicability and necessity requirements that also restrict the obligation ... to collect separately for the purposes of recovery," he said.