As has been widely reported, the Waste (Scotland) Regulations 2012 introduced various obligations on local authorities in relation to separate collection of waste in their area as part of the implementation of the Zero Waste Plan and transposition of the Waste Framework Directive. One such obligation is, from 1 January 2014, to "arrange for there to be provided to the occupier of every domestic property in its area such receptacles as will enable the separate collection of dry recyclable waste from the property".
The authority need not comply with this obligation in certain circumstances, including where "the property is in a rural area, and the authority considers that the separate collection of dry recyclable waste from the property would not be environmentally or economically practicable".
Thanks to the Scottish Government's Defining Rural Areas and Non-Rural Areas to support Zero Waste Policies publication, it is relatively clear whether or not a property is in a rural area. What has not been as clear is when separate collection would not be environmentally or economically practicable. However, a recent case has considered this question and offers some guidance.
The case in question is the recent failed challenge to the transposition of the separate collection requirements of the Waste Framework Directive in England and Wales although the exception in England and Wales is wider, also allowing consideration of whether separate collection is technically practicable.
As with the Scottish legislation, the English regulations allow local authorities to have the primary decision on whether they can rely on the exception. The High Court ruled that it is open to the UK Government to fulfil its obligations under the Directive in this manner and commented that it was perfectly understandable that local authorities would have the primary decision as they are "uniquely placed to take into account local circumstances".
It would appear from the judgement that the decision on whether or not separate collection is environmentally or economically practicable requires consideration of the particular collection circumstances for a property or area. The decision will involve a "sophisticated context-driven exercise of judgement", balancing, among other things, the positive and negative environmental and economic effects of separate collection.
Unfortunately "environmentally or economically practicable" is a new concept in EU waste management legislation but there is EC Guidance available on interpretation.
The EC Guidance offers the following explanations of environmentally practicable and economically practicable:
It is suggested in the judgement that local authorities should be given a reasonably wide scope in determining whether separate collection is environmentally or economically practicable.
However, if a local authority is intending to rely on the exception, it may be prudent to obtain a technical report or technical evidence to satisfy itself that:
Such technical reports or technical evidence will also help the Council to defend the stance it has taken in the event that its reliance on the exception is challenged.
To read this case in full, please click here.