Next in our series of ebriefings on the Government’s Green Paper: Transforming public procurement; looking at the Chapter 4 proposal to change the basis of contract awards.
Our client, and the other claimants, were concerned as to the quality of recycling that would be collected if the Regulations were implemented as proposed.
Subsequently, proceedings were paused to enable the Department for Environment, Food and Rural Affairs (DEFRA) and the Welsh Government to reconsider their position. This led to the announcement of a consultation on the policy and plans to amend the English and Welsh regulations. Many saw this as an admission by Defra and the Welsh Government that the Regulations failed to adequately transpose the EU Directive.
However, in April 2012, during the consultation process, the Claimants were forced to challenge the proposed amended regulations, on the grounds that the revised Waste (England and Wales) (Amendment) Regulations 2012 still failed to comply with the requirements of the EU Directive.
On 25 February 2013, the High Court in Cardiff will finally hear the Claimants’ Judicial Review application and will ascertain whether DEFRA and the Welsh Government have correctly transposed the EU Directive into UK law.
The Claimants believe that despite a consultation process and the publication of the Waste (England and Wales) (Amendment) Regulations 2012 that these regulations, which are currently in force, fail to adequately transpose the EU Directive. The Claimants are of the opinion that the only way to guarantee high quality recycling is for councils to seperate recyclables at source.
About half of councils in England and Wales collect recyclable materials through co-mingling, where waste streams (such as paper, glass, plastic and metal) are collected together and then separated later. However, the Claimants believe that this approach does not guarantee high-quality waste which can then be recycled and therefore does not adhere to the requirements of the EU Directive.
The recent publication of DEFRA's Quality Action Plan seems to support some of the Claimants’ views. The report states that 'current recycling rates are likely to be overestimates as many do not account for material rejected by the Material Recovery Facility (MRF) during the sorting process in a robust manner'. The reports states that a survey found that 60% of reprocessing managers said that only 'some' or 'hardly any' of the material they are sent by the MRF is good enough to use. Three quarters of the reprocessing plants added that recycling material delivered by councils is of worse quality than that they receive from other suppliers.
The Claimants believe that strict adherence to the EU Directive and compelling councils to introduce 'separate' collections for glass, metals, papers and plastics would greatly increase the quality of recycling and reduce the amount of recycling material that is rejected by reprocessing plants. Whilst the UK has come a long way in the past 10 years where recycling is concerned, the delay in implementing 'separate' collections is impacting on the UK’s reputation as a place that takes recycling seriously.
As part of the Judicial Review hearing the High Court will also consider the Claimants’ application for the matter to be transferred to the Court of Justice of the European Union. This will enable the High Court to be given guidance from the European Court as to the true interpretation of the EU Directive, an issue which is currently in dispute between the parties.
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