Reprocessing firms decide not to appeal against ruling on 'co-mingling' of recyclables

Earlier this month the High Court rejected a bid by CRR for a judicial review into the Government's policy on waste recycling. The umbrella organisation that represents reprocessing firms claimed that the Government's acceptance of the 'co-mingling' of recyclables by collectors failed to implement EU rules set out in the Waste Framework Directive (WFD). However, the High Court dismissed the complaint.

In light of the legal action facing it the Department for Environment, Food and Rural Affairs (Defra) made changes to the regulations that implement the WFD. The CRR has now said that it is satisfied with the regime and will not pursue an appeal against the High Court's verdict.

"Our overriding objective throughout this process has been to maximise the value the UK gets from its recovered resources," the CRR said in a statement. "CRR maintains that this is best achieved through the separate collection of recyclables, where technically, environmentally and economically practicable (TEEP). However, we are pleased that the originally contested Waste Regulations were revised to better reflect this. In addition, we look forward to contributing to any future guidance that sets out criteria for this requirement of the regulations."

"The legal process prompted by CRR has successfully focussed action on recyclate quality. This issue is now much better understood by the UK’s secondary materials supply chain than when the judicial review was first sought. As an industry, we have a collective responsibility to ensure the public has confidence in what we do with the recyclable materials that they provide, particularly in light of other recent court proceedings," it added.

CRR's decision not to challenge the High Court's ruling was welcomed by the Environmental Services Association (ESA).

"This [decision] will enable all the key players in the recycling chain – local authorities, ESA members who collect and manage recyclate, and reprocessors to plan ahead without further uncertainty," Matthew Farrow, director of policy at the ESA, said in a statement. "If we are to make further progress in turning more of the UK waste stream back into valuable resources, all these key players will need to work together closely in the coming years."

Changes made to the WFD impose a duty on collectors to keep waste paper, metal, plastic and glass separate where this is "necessary to ensure that waste undergoes recovery operations" in accordance with its provisions. However, collectors are exempt from the separation requirement if they can prove that their approach will achieve certain quality standards, or if establishing a separate collection system is not "technically, environmentally and economically practicable" (TEEP).

The revised Waste Regulations 2012 replicate the wording of this exemption, and Defra is due to publish guidance on its interpretation of TEEP shortly.

Waste law expert Gordon McCreath of Pinsent Masons, the law firm behind Out-Law.com, said that while this decision was expected, it looks like CRR will continue to play a role in the development of Defra's guidance

"This latest decision against CRR was so emphatic, it would have been a brave move to appeal it," McCreath said. "It is clear that CRR intend to keep Defra on its toes, ensuring that the TEEP guidance is up to scratch but it will be difficult to raise a further legal challenge on the transposition of a general test like TEEP."

"Once the guidance is issued, it’ll be interesting to watch how many local authorities decide that separate collection is technically, environmentally and economically practicable in their area and how many stick with the status quo. Could that be the time when we see CRR's next challenge raised? Again, it could be a difficult argument to make given the breadth of the test, but in the end it will depend on what is at stake for CRR and its reprocessor members," he added.