Sir Gary Hickinbottom is set to hear from the Welsh Government and the Department for Environment, Food and Rural Affairs (Defra) at Cardiff Administrative Court today (26 February), in the second day of the three-day hearing into the legality of co-mingled recycling collections.

Yesterday (25 February), Judge Hickinbottom heard from Timothy Straker QC as he made his representations on behalf of the claimants – members of the Campaign for Real Recycling (CRR) – outlining that the principal argument for the claimants' case was that “the [Waste (England and Wales) 2011] Regulations, for a second time, fail to correctly transpose the revised Waste Framework Directive”.

He added that the claimants would be making a secondary argument to refer the case to the European Court of Justice if the judge had ‘any hesitation’ regarding the clarity of the regulations.

Legal heart vs practical heart

Straker outlined that at the ‘legal heart’ of the case is a dispute about the intention of how quality recycling of four waste streams (glass, plastic, metal and paper) is carried out in European regulations, while the ‘practical heart’, is an attempt by reprocessors to “preserve a regime whereby some elements of the waste industry gather four elements together and then separate them for profit”.

Citing evidence from one of the claimants – Andy Moore (of UK Recyclate) – Straker outlined the comparative performance of different recycling collection systems. He stated that kerbside sort is the most cost effective ‘under all circumstances’ and that co-mingled collections bore ‘significant costs’ to reprocessors, particularly highlighting the impact of glass in co-mingled collections.

Further, he outlined that the two collection systems produced differing levels of recyclate quality, with co-mingled collections often seeing a rejection rate of 10 per cent, while materials collected through a kerbside sort system were of a much better quality, seeing only 0.5 per cent of material rejected.

‘High’ quality or ‘Highest’ quality recycling?

However, Judge Hickinbottom questioned whether the environmental case should centre on just the issue of quality, noting that the quantity of material collected for recycling ought to be a factor as well. The judge further noted to Straker that the European Directive was focused on ‘high quality recycling’ rather than the ‘highest quality recycling’.

Developing the argument for the claimants, Straker proposed that the requirement stating that separate collections should be administered at all occasions when found to be TEEP (technically, environmentally and economically practicable) should not be determined at a local level, but rather at the level of the member state. However, the judge appeared to be unmoved by this argument, noting it was surely possible that separate collection might not be practicable in all circumstances.

After having heard arguments surrounding the efficacy of different systems, Sir Hickinbottom heard of procedural issues surrounding the government’s transposition of the directive.

Straker outlined that the government’s transposition had changed the structure and requirement of the directive in the Waste Regulations, such that separate collection was only needed in cases in which it was the only way to ‘facilitate or improve recovery’, rather than being something member states ‘shall’ do provided that separate collections were TEEP.

According to article 11.1 of the European directive, ‘member states shall take measures to promote high quality recycling and to this end shall set up separate collections of waste where technically, environmentally and economically practicable and appropriate to meet the necessary quality standards for the relevant recycling sectors’.

However, the current Waste Regulations read: ‘An establishment or undertaking which collects, transports or receives waste paper, metal, plastic or glass must, from 1st January 2015, take all such measures available to it in that capacity as are reasonable in the circumstances to ensure that where that waste has been separately collected it is not mixed with other waste or other material with different properties. This duty applies only where keeping waste separate facilitates or improves recovery.’

The case continues today, with the conclusion of the claimants case and the defence to be completed by the end of Tuesday.

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Read more about the Judicial Review into co-mingled recycling collections.