Local authorities have been reminded they face a risk of legal action over their decisions regarding separate collections of recyclables and TEEP.
The risks facing council were raised in an online session organised to promote the launch of the “Waste Regulations Routemap”, which is intended to aid councils in meeting the Waste (England and Wales) Regulations 2011.
The regulations state that separate collections of at least paper, metal, plastic and glass are required where they are technically, environmentally and economically practicable (TEEP) and appropriate to meet “the necessary quality standards for the relevant recycling sectors” by January 2015.
The Routemap was developed by a working group comprising WRAP, LWARB and the Waste Network chairs assisted by environmental consultancy Eunomia, and was published in April.
Warning of the risks facing local authorities, Peter Jones, senior consultant at Eunomia said: “This was a challenging piece of work to do because there is little information on which to base the route map. The Environment Agency has not indicated its approach to enforcement of the waste hierarchy and there is also no case law to apply.
“In fact the challenges we face come partly from the differences in EU and UK law, and there is some quite unclear language as well. Practicability is a very malleable term and high quality recycling is also open to some discussion about what it might mean.”
And he revealed the route map group had gone so far as to take legal advice over the application of the UK law, and the revised Waste Framework Directive, upon which the Regulations are based.
“We obtained legal advice from a QC to help support our understanding of the law but the fact remains that what we offer is a process that if you follow, you can be confident you have a reasonable chance of being compliant.”
Councils were also reminded of the potential for them to face a legal challenge over their interpretation of the WFD and were told by Jones that this would not come from the Environment Agency.
“The risks are around possibility of a legal challenge, either from reprocessors who, through the Judicial Review, have already show they are keen to increase the amount of material separately collected or from local environmental groups,” said Jones. “The initial step is to look at the current situation and to determine if this is compliant.”
Jones also commented that issues such as the value of recyclate could be considered a factor in determining the economic impact of a service change.
“You need to be aware that if circumstances change you have to refresh your view on economic practicability. It is about overall affordability, that is a decision that has to be taken locally.”