In the first major environmental judicial review to be heard in Cardiff since the Administrative Court was regionalised in April this year, Beatson J has rejected a challenge brought by Newport City Council in respect of the landfill allowances granted to waste disposal authorities in Wales: R. (Newport City Council) v Welsh Ministers [2009] EWHC 3149 (Admin).
Under the Waste Trading and Emissions Trading Act 2003, which implemented EU Directive 99/31 on the landfill of waste, the UK government is required to make regulations specifying the maximum weight of biodegradable municipal waste that may be sent to landfill by each of the UK nations. The Welsh Ministers are then required to apportion the allowance for Wales into yearly allowances for all of the 22 Welsh waste disposal authorities.
In the first set of allowances made by the Welsh Ministers in 2004 for the period 2004-2010, allowances were set by reference to data on the level of waste production in each authority in 2001/02. In March 2009, the Welsh Ministers decided to set the allowances for the period 2010-2020 by reference to more recent data on the level of waste produced in 2007/08. The Welsh Ministers considered the 2007/08 data to be significantly superior to the 2001/02 data: whereas the 2001/02 data were based on paper records and contained many inaccuracies, the data for 2007/08 drew on the web-based WasteDataFlow system, which alerts waste disposal authorities to anomalies.
Newport City Council claimed that the decision to allocate allowances for 2010-20 by reference to a new baseline year was Wednesbury unreasonable. It claimed that the decision had the perverse effect of penalizing authorities, such as itself, which had taken active measure to reduce waste since 2001/02, and rewarding those which had done little or nothing to reduce waste in that time.
Beatson J rejected the claim. It was held that the Welsh Ministers had been entitled to base allowances for 2010-2020 on more recent data collected by an up-to-date online system in which they had confidence. Given that there was a broad consensus that the 2001/02 data were flawed, the decision taken by the Welsh Ministers to use more recent baseline data was a rational way of achieving fairness between all 22 waste disposal authorities in Wales.
It was clear that the Welsh Ministers had applied their mind to the question of whether any authority in Wales would be substantially disadvantaged by the change of baseline. Their conclusion that Newport would not be so disadvantaged was not irrational given that the reduction in waste arisings achieved by Newport since 2005 was, in fact, below the national Welsh average.
Gwion Lewis represented the Welsh Ministers, led by the First Counsel of the Welsh Assembly Government, Clive Lewis QC.
