The threat of legal action by recyclers against councils has intensified as the consultation deadline on controversial amendments to waste collection laws approaches.
Paper packaging reprocessor Smurfit Kappa’s external affairs manager Peter Seggie has told MRW that local authorities “are right to worry about future legal challenge” over comingled collections if the amendment is passed.
A consultation by Defra and the Welsh Government on the changes to the Waste (England and Wales) Regulations 2011, forced by a postponed judicial review, closes on 12 April.
The amendment would allow commingled collections to continue where separate collections are not “technically, environmentally and economically practicable” (TEEP) or necessary to meet “appropriate quality standards”.
Seggie says that where separate collections are not deemed TEEP, “the collector must be able to show clear evidence as to why ‘separate collection’ has not been employed and demonstrate how this conclusion was reached”.
He adds: “Local authorities are right to worry about future legal challenge on this key point.”
Councils fear that ambiguity about the definitions of TEEP and appropriate standards could lead to legal action.
Waltham Forest Council cabinet member for environment Clyde Loakes (Lab) this week said ministers must act or councils face being “picked off one by one”.
He said: “By not clearly coming out and stating commingled collections are a good thing, the Government is delegating the risk down to local councils.
“The Government needs to be able to see that commingled collections are a good thing both for councils and residents.”
Phillip Ward, former director of local government services at WRAP, said councils could face legal action from disgruntled collection contractors as well as reprocessors.
He said: “An awful lot of contracts from local authorities now specify commingled collection, and don’t allow separate collection.
“So you could see a disgruntled contactor saying ‘we do separate collection and we haven’t been allowed to bid for this because it specified commingled and we don’t think that specification was right’.”
He added: “We can’t tell until we see the Government guidance on TEEP, how far it will be possible to challenge the decisions of a particular local authority or waste company. But in principle it ought to be possible for a particular decision to be reviewed by the courts.
“There is a strong presumption in the directive for separate collection, so if someone’s not going down that route and is making a judgement about practicability that that is in principle going to be challengeable in court.”