Bird & Bird successfully supports UK Environmental Services Association in leading waste judicial review


The Environmental Services Association (ESA), the voice of the UK’s waste management industry, has welcomed today’s judicial review (JR) ruling which supports the Department of Environment Food and Rural Affair’s (Defra) transposition of the revised Waste Framework Directive (rWFD) and makes clear that co-mingled collections (where different types of recyclable material are collected in one bin) are permissible under EU law.

In his judgment handed down today, Mr. Justice Hickinbottom dismissed the case brought by the Claimants (a group of companies involved in the commercial recycling of waste into new products) who argued that by allowing local authorities to exercise judgment over whether to introduce ‘separate collection’, Defra had unlawfully failed to reflect the requirements of the Directive. He found that the Defendants (Defra and the Welsh Government) had properly transposed the Directive, and ruled that a reference to the Court of Justice of the European Union was neither necessary nor appropriate. He found that the obligation [in the rWFD] to set up separate collection of paper, metal, plastic and glass from 2015 applies only where it is necessary to ensure waste undergoes recovery operations and to facilitate and improve recovery and is also technically, environmentally and economically practicable. 

ESA’s Director General, Barry Dennis said: “The ESA has always believed that both the Directive and the revised Defra regulations recognise that decisions over local collection methods are complex and that local discretion over the format of recycling collections is needed to ensure the Directive’s objectives are met. We are therefore pleased that the Judge, having examined the matter in great depth, has taken the same view.

“ESA members can now get on with the challenge of working with their local authority customers to select the most appropriate collection system locally. This is vital if we are to continue to make significant increases in recycling rates, so that as much of our waste as possible is returned to productive use.”

“ESA and its members are delighted with the outcome of this important case. On their behalf, I would like to express my sincere thanks to David Hart QC, and to Helen Loose and the team at Bird & Bird for putting the legal arguments and the industry’s concerns across so cogently. I cannot speak too highly of their expertise and professionalism.”

Helen Loose, a legal director at Bird & Bird, who has acted for the ESA on numerous environmental matters, represented the ESA together with litigation partner Jeremy Sharman and senior associate Chris Stone.  Leading Counsel, David Hart QC of 1 Crown Office Row, was appointed to represent alongside Bird & Bird.

Helen said: “We were delighted to represent the ESA in this landmark case for the waste industry, and particularly pleased that the Judge quickly saw the merits of the case and has allowed local authorities to continue to decide whether co-mingling or separate collection or any combination of collection methods is the right choice for their particular area.

“The case involved a significant amount of evidence over collection methods but rested quite crucially on the legal interpretation of one article of the rWFD. The interpretation of European waste law has long played an important part in my environmental law practice and this case marks an important moment in bringing together years of experience in the form of our integrated legal team and the expertise of several policy officers from the ESA”.

A copy of the judgement is available now on the website.