An important letter to all local authorities from the Local Government Association.

Judicial review of Waste Regulation: Recent press coverage

Dear Colleague,

As you may be aware, there is an important judicial review case currently under way involving a challenge to the current legal basis for waste and recycling collection.

The claimants in that case – UK Recyclate and a number of other recycling contractors – want some councils to be forced to change their arrangements at significant cost. The LGA is also a party to the case and is arguing that councils are legally entitled to retain a level of discretion to choose the appropriate arrangements for their areas.

A recent article in the Municipal Journal (MJ) by the claimants contains a number of factual inaccuracies and misleading statements. It appears to be designed to spread misinformation and persuade local authorities that the judicial review has already been decided and that they are at legal risk. The case has not been decided, and the purpose of this letter is to put the record straight.

What is at issue in the judicial review (UK Recyclate v Defra) is whether EU law requires every council to impose separate source collection of waste on its householders, outlawing co-mingled collection, or whether it permits co-mingling in appropriate cases. As you know, every local area is very different, and being forced to change to a single collection approach could have significant cost implications for many councils, and may well not be appropriate in many local circumstances.

The Government has recently made amended regulations in order to put the legal position beyond any doubt. Those regulations continue to allow for co-mingled collection where appropriate for local circumstances. They are the law of the land unless a court says otherwise. The LGA’s lawyers, and the Government’s, believe this approach is correct under EU law.

In the recent MJ article, the claimants’ lawyers attempt to tell councils that a judgment has already been made by the court and that councils which use co-mingled waste collection are now in a legally dubious position. This simply isn’t so. The judicial review is ongoing, but as yet there has been no hearing before a judge, and no finding made by the court.

As you will know, it is unusual for parties to litigation to run their arguments outside the courtroom while the case is ongoing. The MJ article therefore appears to be an attempt by the claimants to stir up local authority concern before the case even gets to a hearing, and suggests that they are arguing from a position of weakness.

It is of course in the commercial interest of the claimants that councils should move away from co-mingled collection. The LGA’s strong view is that the law permits councils discretion to make their own decisions in the light of local circumstances and in accordance with the clear legal provision made by the amended regulations.

Councils should certainly not be influenced by an inaccurate and misleading article written on behalf of parties with an obvious commercial agenda.

You may be asking yourself if there is anything you can do to influence the situation. The LGA is a party to the case and if you would like to follow events more closely and contribute, should the need arise, to developing evidence further, please do put an officer in contact with Abigail.burridge@local.gov.uk.

The LGA has also communicated with your officers about this case and will be happy to provide further information on the position.

Yours faithfully,

Cllr Mike Jones
Chairman of the LGA Environment and Housing Board

Personal note: I trust that when the dust has settled on this issue, all local authorities will consider very carefully, whether or not the companies involved in this legal action would make good partners in any future ventures.