International Review of Waste Management Policy - Department of ...

their allocation based on past quantities collected) is likely to imply the awarding of
assets to those who may have made strategic decisions in the past to maximize
commercial waste collection as a revenue-raising activity for their Direct Service
Organisations (DSOs). The only way to limit the degree to which the value of these
assets can be realized without taking any effective action is to seek to restrict the
degree to which the proportion of non-household waste collected in municipal waste
can change over time.
Defra has tried to clarify the way in which non-household waste is to be dealt with by
local authorities. Specifically, it has sought to restrict the degree to which local
authorities can reduce the amount of commercial waste they collect by providing
clarification of its interpretation of Section 45(1) of the Environmental Protection Act
1990. 1014 However, would-be commercial waste customers choosing, in possession of
all the facts, a lower cost service than one on offer from a given local authority could
not be restrained from making such a choice. It would be difficult to argue that such
waste would remain ‘under the control of’ the local authority concerned where it is no
longer chosen as the collection contractor.
It can be seen that both the allocation mechanism and the way in which the
biodegradable content of landfilled waste is calculated are likely to lead to some
perverse strategies being developed, notwithstanding Defra’s move to try to head off
actions by local authorities intending to reduce the amount of commercial waste they
collect. It is doubtful whether Defra could really require local authorities to continue to
collect commercial waste from their existing customers, and the recent court
judgement in the case of WRWA v Wandsworth would tend to support this view. 1015
The additional risk that this would imply in respect of maintaining a balance of
allowances sufficient to cover the quantity of BMW being landfilled could itself be
argued as justifying an increase in the price of the service being offered by the local
authority. Since competitors in the market for the provision of commercial waste
collections in the WDA area would not be faced with any such risk (the waste would
not fall under the definition ‘municipal’), then this would be tantamount to forcing
customers to choose a higher priced service, thereby restraining trade. 1016
1014 Defra (2004) Municipal Waste, Commercial Waste and the Landfill Allowances Trading Scheme,
http://www.defra.gov.uk/ENVIRONMENT/waste/localauth/lats/pdf/lats-municipalwastedefine.pdf.
1015 In this judgement, Justice Evans-Lombe ruled that WRWA, which sought judicial review of a
decision made by Wandsworth BC to set charges for trade waste which effectively reduced the quantity
of waste collected by the authority, had no case for such a review. In other words, Wandsworth had not
acted outside the law in essentially seeking to reduce its collection of non-household municipal waste..
1016 Matters would, or course, have looked somewhat different had Defra taken the view that municipal
waste did in fact include all commercial waste in the WDA area, irrespective of who collected it. This
would have made the tasks of data acquisition and verification more difficult, but it would also have
led, potentially, to a more rational form of collection logistics rather than encouraging its
fragmentation. It might also have ensured a more enlightened approach to procurement of facilities in
which treatment facilities were designed to deal not only with the material collected by the WCAs /
WDAs, but also with the wider commercial wastes.
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