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Urgent call for collections guidance to avoid threat of legal challenges

Councils continuing with commingled collections after the amended Waste (England and Wales) Regulations 2012 come into force need to be told whether they will be legally compliant, according to industry bodies.

From 1 January 2015, waste collection authorities must collect waste paper, metal, plastic and glass separately, unless they can demonstrate it is not technically, environmentally and economically practicable (TEEP).

The Chartered Institution of Wastes Management (CIWM), The Environmental Services Association (ESA) and the Resource Association (RA) have all called for the immediate release of TEEP guidance to help councils understand how they can continue commingled collections while keeping within the new law.

Steve Lee, chief executive of CIWM, said: “Given the lead time for setting up new collection systems and contracts, (councils) need it sooner rather than later.”

Lee also called for “cross-border consistency” between the UK and Ireland governments on this issue.

ESA director general Barry Dennis said: “Any uncertainty about what is required is unhelpful at a time when many waste contracts are up for renewal.”

The call for guidance comes after former resource minister Lord de Mauley wrote a letter to councils warning that local authorities considering commingling instead of separate collections, or including glass in a commingled collection, should “consult their lawyers, and should keep a clear audit trail given the potential for legal challenge”.

In a letter to Defra Mike Jones, chair of the Local Government Association’s (LGA) environment and housing board, wrote: “Recent case law has shown that statements by ministers articulating views on policy have no force in the court’s interpretation of the law.

“The most useful advice in (de Mauley’s) letter is that local authorities should take their own legal advice, and make decisions in accordance with that advice locally.”

RA chief executive Ray Georgeson echoed Lee’s comments and said: “The onus has clearly been placed upon local authorities to ensure they fulfil their legal duties from 2015 and so the publication of the TEEP guidance is now a pressing need.”

He added that without guidance and a detailed timetable for materials recycling facilities regulations, de Mauley’s letter “probably raises more questions than it answers”.

Furthermore, the threat of legal challenges against councils using commingled collections is genuine according to some industry figures.

Mal Williams, speaking as a director of UK Recyclate, a company which supported the judicial review over the UK allowing commingled collections as part of the revised Waste Framework Directive (rWFD), told MRW: “We will actually be taking action rather in the same way as we did with the government if people start transgressing the law as we see it.

“We will actually be looking for local authorities making dopey decisions.”

Williams said that TEEP might be used as a defence against legal challenges, but that enough local authorities already have separate collections to weaken TEEP’s power as an argument.

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