Newport City Council, R (on the application of) v The Welsh Ministers

The claimant is one of twenty-two waste disposal authorities in Wales. It challenges the Welsh Ministers’ decision about the size of the landfill allowances allocated to waste disposal authorities for the years from 2010/11 to 2019/20. The complaint is that the final allowances were set at a level which substantially differed from indicative allowances previously notified as a result of the Welsh Ministers changing the baseline for calculating the allowances from the level of waste production in 2001/2, the baseline used in the first round of allocation decisions in 2004 (for the period until 2009/10), to that of waste production in 2007/8. The decision was made on 4 March 2009 and communicated to the claimant and other waste disposal authorities in Wales in a letter dated 10 March 2009. These proceedings were launched on 4 June 2009, an Acknowledgment of Service and summary grounds were filed on 29 June, and HHJ Curran QC granted permission on the papers on 13 July.

The evidence before the court consists of two statements by Mr Davison, Head of Public Protection and Environmental Services at Newport City Council dated 3 June and 29 October 2009, and three statements by Dr Rees, head of the Waste Strategy Branch of the Welsh Assembly Government dated 19 August, 16 October and 5 November 2009. Dr Rees’ team has been responsible for managing the Landfill Allowance Scheme in Wales and for introducing the web-based WasteDataFlow reporting system. Mr Nigel Giffin QC, on behalf of the claimant, and Mr Clive Lewis QC, on behalf of the Welsh Ministers, prepared comprehensive and helpful skeleton arguments.

The claimant submits that the decision to change the baseline was seriously flawed on ordinary Wednesbury principles of judicial review. It submits that the decision is irrational because it has the perverse effect of penalising authorities, such as the claimant, which have taken active waste reduction measures since 2001/2, and rewarding authorities which have done little or nothing towards waste reduction in that time. It submits that the decision was based on a number of assumptions which are untenable or which involved the Welsh Assembly Government disregarding relevant considerations. Mr Giffin submitted the following assumptions were legally flawed. First, that it was appropriate to take account of 2004/5 and subsequent years and to leave out of account what had happened between 2001/2 and 2003/4. Secondly, that the changes as a result of the re-basing did not significantly disadvantage any waste disposal authority. Thirdly, that reductions in authorities’ waste arisings were attributable to factors other than any particular effort by individual waste disposal authorities to minimise waste. Fourthly, that re-basing was required in order to correct flaws in the 2001/2 data which had been used as the baseline.

The defendant’s case is that the decision is lawful and rational. First, it had no obligation to use the 2001/2 data for the new allocation. Secondly, there were significant flaws in the data for 2001/2. In 2006 the defendant made it clear that it intended to move towards calculating allowances by reference to more reliable data from a later year in order that allowances could be allocated more equitably between waste disposal authorities. Moreover, although some waste disposal authorities, including Newport, would be given lower allowances on the basis of the more recent data, this would not put them at a major disadvantage in terms of their ability to remain within their landfill allowances in future years.

Council Directive 1999/31/EC of 26 April 1999 (“the Landfill Directive”) deals with the landfill of waste. One of its aims is to reduce the amount of biodegradable waste disposed of by landfill. The preamble to the Directive states:

“(3)

Whereas the prevention, recycling and recovery of waste should be encouraged as should the use of recovered materials and energy so as to safeguard natural resources and obviate wasteful use of land;

…

(6)

… Whereas like any other type of waste treatment, landfill should be adequately monitored and managed to prevent or reduce potential adverse effects on the environment and risks to human health;

…

(8)

Whereas both the quantity and hazardous nature of waste intended for landfill should be reduced where appropriate; …

…

(16)

Whereas measures should be taken to reduce the production of methane gas from landfills, inter alia, in order to reduce global warming, through the reduction of the landfill of biodegradable waste and the requirements to introduce landfill gas control;”

Article 1 of the Directive provides:

“… The aim of this Directive is, by way of stringent operational and technical requirements on the waste and landfills, to provide for measures, procedures and guidance to prevent or reduce as far as possible negative effects on the environment, in particular the pollution of surface water, ground water, soil and air, and on the global environment, including the greenhouse effect, as well as any resulting risk to human health from landfilling of waste, during the whole life cycle of the landfill.”

By Article 5, Member States are required to “set up a national strategy for the implementation of the reduction of biodegradable waste going to landfills”. That strategy “should include” measures to achieve particular targets “by means of in particular, recycling, composting, biogas production or material/energy recovery”.

The targets involve the progressive reduction of the amount of biodegradable municipal waste going to landfills, measured as a percentage of the total amount by weight of such waste which was produced in a Member State in 1995 (or the latest year before that for which standardised data is available). Article 5 requires Member States to implement the strategy not later than two years after the directive comes into force. Article 5(2), however, allows Member States which put more than 80% of their collected municipal waste in landfills to postpone the attainment of the specified targets by a maximum of 4 years. The United Kingdom has made use of this provision. Accordingly, the amount of biodegradable municipal waste going to landfills must be reduced to 75% of the baseline total by 2010, to 50% of that total by 2013, and to 35% of that total by 2020.

Article 2(b) of the Directive provides that “municipal waste means waste from households, as well as other waste which, because of its nature or composition, is similar to waste from household”. As there were differences in the approach of waste disposal authorities to this definition, in September 2005 the United Kingdom and Welsh authorities issued guidance to clarify the position: see [25].

The United Kingdom sought to implement the Landfill Directive by the Waste and Emissions Trading Act 2003 (“WETA”) and associated regulations. Section 1 of WETA requires the Secretary of State to make regulations specifying the maximum amount by weight of biodegradable municipal waste that is allowed in “each scheme year that is a target year” to be sent to landfills from the United Kingdom as a whole, and from each part of it; England, Scotland, Wales, and Northern Ireland. Section 1(2) requires the amount specified to be consistent with the United Kingdom’s obligations under Article 5(2) of the Landfill Directive. Section 1(4) requires the Secretary of State to consult, inter alia, with the National Assembly for Wales before specifying amounts from Wales.

The postponement of the Article 5(2) targets is effected by section 23 of WETA. Section 24(1)(c) provided that the “allocating authority” for Wales was the National Assembly for Wales. Since the Government of Wales Act 2006 the allocating authority is the Welsh Assembly Government. By section 24(5) of WETA “waste disposal authority” has the same meaning as in Part II of the Environmental Protection Act 1990 (the 1990 Act). The claimant is a waste disposal authority under the 1990 Act and thus under WETA. The 1990 Act sets out the objectives for the purposes of the National Waste Strategy in Schedule 2A. These objectives include (paragraph 4) “encouraging the prevention or reduction of waste production”.

Provision for the landfill allowances scheme is made in sections 4 to 9 of WETA. By section 4 each allocating authority, i.e. in this case the Welsh Assembly Government, must allocate an allowance to each waste disposal authority in its area of the amount of biodegradable municipal waste that may be sent to landfills for each target year: see section 4(1). By section 4(2) the total amount allocated to all waste disposal authorities must not exceed the maximum weight specified for the area of the allocating authority. Its remaining material provisions are:

“(3)

An allocation under subsection (1) must be made before the beginning of the year to which it relates.

(4)

As soon as an authority has made an allocation under subsection (1) it must publish a statement –

(a)

detailing, in relation to each waste disposal authority in its area what allowances have been allocated to it, and

(b)

explaining the basis for the allocation.

(5)

Nothing in this section shall be taken as requiring any allowances to be allocated to any particular waste disposal authority.”

Section 5 of the Act is headed “Alteration of allocations under section 4”. Section 5(1) provides that an authority that has made an allocation under section 4 “may at any time alter the allocation, subject to subsections (2) and (3)”. Subsection 2 forbids the withdrawal of an allowance “that has already been utilised” and subsection 3 provides that in exercising the power to alter allocations, the allocating authority must ensure compliance with the overall targets set for its area.

The Landfill (Scheme Year and Maximum Landfill Amount) Regulations 2004 SI 2004 No. 1936 provide that “scheme year” in the case of Wales means the period of 6 months beginning 1 October 2004 or a year beginning with 1 April in any of 2005-2019, and “target year” means a scheme year ending with 31 March in 2010, 2013 or 2020. By Table 1 the maximum amounts of waste for Wales are 710,000 tonnes in 2010, 470,000 tonnes in 2013, and 330,000 tonnes in 2020. Table 4 sets out the maximum amount of waste sent to landfill in Wales in non-target years. Detailed provision for the monitoring of enforcement of the landfill allocations to be made for waste disposal authorities in Wales was made by the National Assembly pursuant to WETA section 11 by the Landfill Allowances (Wales) Regulations 2004 (2004 Number 1490 (W)). The Regulations provide that the monitoring authority for Wales is the Environment Agency which must establish and maintain a landfill allowances register recording the amount of biodegradable municipal waste sent to landfills by each waste disposal authority: Regulations 5 and 10. Regulation 13 provides that the penalty under WETA (Section 9(2)) for a waste disposal authority which exceeds its lawful allowance is £200 per excess tonne.

By section 9 of WETA a waste disposal authority owes a duty to the allocating authority:

“… to secure that the amount of biodegradable municipal waste sent to landfills in that year in pursuance of arrangements made by the waste disposal authority does not exceed the amount authorised by the landfill allowances available to that authority for the year”.

Section 9(2) provides that a waste disposal authority that fails to comply with this duty is liable to a penalty. Where the United Kingdom as a whole exceeds its prescribed amount, sections 9(3) and (4) enable a supplementary penalty to be imposed.

I have referred to the Welsh Assembly Government’s Waste Strategy Branch, headed by Dr Rees. Apart from Dr Rees, the officials involved in the decisions in these proceedings were Mr Owens, a waste strategy officer in Dr Rees’s team, and Mr Roberts who headed the Assembly Government’s Waste Policy and Local Environmental Quality Division.

In 2004/5 when the Landfill Allowance Scheme was introduced, the 2001/2 data was the best available. Dr Rees’s department considers that the data obtained from April 2004 by the comprehensive WasteDataFlow system, which includes checks that flag up data entry anomalies, improves the accuracy and consistency of data reporting: Rees, first statement paragraphs 8(1), 29 and 32-36. There was a broad consensus that the 2001/2 data was flawed: Rees, third statement paragraph 2. For this reason, in 2006 the defendant made it clear that it intended to move to calculating allowance by using more reliable data from a later year. With this summary I turn to the documents published since 2002.

In 2002 the Welsh Assembly Government published Wise About Waste: The National Waste Strategy for Wales. There are many references in this document to the importance of reducing waste and to the waste hierarchy in the EU Framework Directive. The prevention of waste production is at the top of the hierarchy. Reduction and minimisation of waste production and hazardousness is the second item. The document refers to the need to curb growth and reduce municipal waste arisings in order to make a major impact. It also encourages authorities to set a target for waste reduction: see paragraphs 2.12, 5.12, 5.15-5.17.

The next relevant document is a Welsh Assembly Government consultation paper on the implementation of WETA and the Regulations in Wales. This paper, published in July 2003, stated that implementation would be consistent with the plan in the National Waste Strategy for Wales. The method of allocating landfill allowances was dealt with in section 3.2. A number of criteria were considered, including “waste arisings”, and “landfill need”, both in a specified year. The Consultation Paper (paragraph 26) stated that for 2004, the first year of the scheme, the landfill allowance allocations would be based on landfill need, but that allocation of landfill allowances in 2010 would be based upon the proportions of waste arisings in each local authority. At that stage (see paragraph 27) it was envisaged that the allowances in 2010, would be based on authorities’ proportions of waste in 1998 and with a linear reduction from 2004 to 2010. Illustrative allocations were given for 2004 and 2010 based on 2000/01 figures. As to reviewing the allocation of allowances, section 3.3 states “… there are likely to be changes to some local authorities that will require a review of landfill allocation”. The potential changes are said to “include” demographic changes, boundary changes, and merging of local authorities.

The Welsh Assembly Government published an analysis of the responses to the July 2003 consultation paper and its own position in the light of those responses. The Assembly Government stated it intended to proceed with a linear progression to the total number of allowances in the first target year of 2010 and to review the allocation at three-yearly intervals with the first review in 2007. It also stated that, although it was unlikely that more frequent reviews would be required, it would “keep the operation of the allowance scheme under close consideration”.

On 11 June 2004 the Waste Strategy Branch issued an information paper with an explanation of the allocation of allowances. The paper, which was not a formal notice of the allowances, stated that, if there were concerns or queries over the allowances or the methods used to calculate them, they might be revisited. It referred to the identification of data that would be considered as municipal waste for the purpose of the landfill allowance scheme. It also referred to the potentially distorting effect of including construction and demolition wastes from housing maintenance and highway functions which some waste disposal authorities reported and others did not. However, it also stated that, notwithstanding this, the allocation of allowances made in advance of October 2004 applied to all municipal wastes contained in a document called the Municipal Waste Management Survey 2001/02, including wastes that should arguably be excluded. The paper accepted that the approach would need to be reviewed and that any review would need to be consistent with the decisions of the Environment Agency and DEFRA.

In the light of the consultation, on 18 August 2004 the Minister for Environment, Planning and Countryside wrote to Local Authority Chief Executives informing them of the allocation decisions for the first round. The letter stated:

“The calculation method chosen for the allocation of allowances makes the initial allocation (for 2004/5) based on the amount of waste landfilled in Wales in 2001/2. For 2010 the allocation of landfill allowances will be made to authorities in proportion to the amount of Wales’ municipal waste that they produced in 2001/2. Landfill allowance allocations in intermediate years will be made on the basis of a linear reduction between the 2004 allowance and that for 2010.”

The letter also referred to the position should waste disposal authorities exceed their allocations. It stated that, although the Welsh Assembly Government reserved the right to consider each case individually, it “has indicated that it may be prepared to waive such penalties, providing that local authorities can demonstrate that they have clear plans to bring the amount of biodegradable municipal waste that they landfill within their targets by 2010…”. The letter also stated:

“It is intended that the landfill allowance allocations would be reviewed in 2006/7, to consider demographic and other changes that may affect their distribution. Any changes to allowance allocations will not apply retrospectively and any changes to allocations will only take place following consultation.”

In September 2005, as a result of the different approaches by different waste disposal authorities, the Welsh Assembly Government and the Department for Environment, Food and Rural Affairs (DEFRA) issued guidance on the meaning of “municipal waste”. They did so in order to provide clarification to waste disposal authorities. The guidance stated that the definition of municipal waste in the Landfill Directive encompassed all waste under the control of the local authorities, whether they were waste disposal, waste collection, or unitary authorities.

In the light of this guidance, in December 2005 the Welsh Assembly Government and the Welsh Local Government Association (“WLGA”) issued a consultation document on the landfill allowances scheme. This contained two forewords; one by the Welsh Minister for the Environment Planning and Countryside, the other by Mr Parry Hughes of the WLGA. The Minister’s foreword refers to recent clarification of the definition of municipal waste as prompting an early review of the scheme. Mr Parry Hughes stated that the Association requested the allocations be reviewed because of the revision of the definition of municipal waste and “more importantly… we now have robust data on which we can build a strong foundation on which the allocations are based”. This is a reference to data produced by the new WasteDataFlow system which had been introduced in April 2004.

Section 2 of the consultation document stated that it was originally considered that all the waste included in the Municipal Waste Management Data Survey for 2001/2 was municipal and was to be included in the calculation of landfill allowances scheme allowances. The September 2005 guidance, however, meant that this was not so. As a few local authorities in Wales included in their waste data returns materials that would not be considered to be municipal within the terms of the joint guidance, consideration was being given to recalculating and reallocating landfill allowances in the light of it. The paper recognised that a revision of allowances might make it easier for some authorities and more difficult for others to comply with future targets.

Section 3 of the consultation document dealt with the recalculation of allowances. It stated that the Assembly Government did not propose to change the criteria upon which the allowances were calculated, and that recalculation on this basis would “depend upon the baseline year used for the calculations”. 2001/2 had been used as the baseline year for the first round of allocations but, by December 2005, validated data for the year 2003/4 was available. An appendix to the document gave existing allowance allocations and proposed indicative allowances. It did so taking into account the guidance by DEFRA and the Assembly and using different baseline years. The paper sought consultees’ views as to whether 2001/2 or 2003/4 should be used as the baseline year. Section 3.2 referred to whether allowances allocated up to 2020 should be reviewed and altered to take account of the demographic, boundary, or other changes. It sought the views of consultees on this and on the frequency of any reviews. One of the tables in the Appendix showed indicative allowances for 2006/7 to 2009/10 calculated on the basis of the Municipal Waste Survey Report 2003/4 and reflecting the guidance on municipal waste issued by DEFRA. The claimant did not respond to this consultation.

The Welsh Assembly Government’s response to consultees’ views on the September 2005 Joint Consultation was issued on 5 June 2006. As to the year to be used as the baseline year for the recalculation of landfill allowances, the response states:

“The Assembly Government recognises that there is a case for recalculation of landfill allowances to reflect the consistent approach facilitated by the clarification of the definition of municipal waste. There is a case to recalculate landfill allowances in order to avoid penalising those local authorities that did not report highways, construction and demolition and some other wastes in 2001/2 with consequent skewing of the allocations. However, retrospective application of the clarification of 2001/2 data would be difficult and would depend upon the accuracy of the data submitted then.

Alternatively, applying the clarification to 2003/4 data, as in the consultation document, raises concerns among respondents that those authorities that were effective in diverting waste from landfill prior to 2003/4 would be penalised, while those that did little or nothing would be rewarded.

Taking the views of the respondents into account, it is proposed that the allowance allocations to 2009/10 will remain as allocated in 2004 using 2001/2 baseline data. Where an individual local authority considers itself to be disadvantaged by this approach, to the extent that it may exceed its allowances in any year up to 2009/10, then it may seek consideration of this during any application of the Assembly Government/Welsh Local Government Association “Penalties Protocol”.

From 2009/10 to 2019/20 it is proposed to use allowances allocated using 2008/9 as the baseline year, when the reporting of municipal waste arisings through WasteDataFlow should be consistent and by which time most local authorities should have made good progress towards reducing their landfill need.”

The letter sent with the Assembly Government’s response included “indicative landfill allowances for Welsh local authorities from 2010 to 2020” which local authorities had asked for. The letter stated that the indicative allowances:

“have been calculated using the proportions of waste arisings in each local authority in 2001/2002, i.e. on the same basis as previous allowance allocations. The actual allocations will be published in future as detailed in the attached response”.

The Assembly Government’s response also stated that it would issue indicative allowances in 2006 “using the 2001/2 municipal waste data” but that “the actual allowances up to 2019/20 will be calculated using 2008/9 baseline data … and will be issued in 2009/10”. There was an error in the calculation of the indicative allowances in the letter and on 21 July all waste disposal authorities were notified of the correct indicative allowances.

The decision to use the 2008/9 dataset as the basis for allocating the allowances in the second stage i.e. from 2009/10 to 2019/20 was “justified on the ground that the most recent available dataset would be more accurate and, accordingly, provide a fairer basis for allocation”: Rees, first statement, paragraph 49.

Local authorities which were adversely affected by the use of the 2001/2 baseline, some of whom were very close to failing to meet their targets because of the anomalies in their 2001/2 data expressed concerns: Rees, first statement paragraphs 32 and 52. Concern was focussed on Ceredigion which had made strong representations to the Welsh Assembly Government that it was unfairly prejudiced by the use of the 2001/2 data set.

Authorities that would be adversely affected by a change in allocation method also expressed concern. Newport stated it was being penalised for its effort in reducing municipal waste arisings: Rees, first statement, paragraphs 55-59.

In the period 2001/2 to 2004/5 the waste arisings in most authorities had increased. On 4 June 2006, the day before the Assembly Government issued its response to the consultation, Dr Rees sent an email to Mr Davison stating, inter alia, that “Newport is highly unusual (definitely bucking the trend) in having a reduction in MSW/BMW being collected”. In his third statement Dr Rees states (paragraph 8) this email referred to the period between 1996/7 and 2004/5 and that when he sent it he had not seen the 2005/6 results which showed the beginning of what was a consistent reduction in waste arisings by waste disposal authorities.

The 5 June 2006 document referred to the Assembly Government’s proposal to use 2008/9 as the baseline year from 2009/10 to 2019/20. This was repeated in a consultation draft report on the landfill allowances scheme circulated in August 2008 by Environment Agency Wales, the monitoring authority for Wales. As a result of the reference in this draft, Ms Jowitt, at the WLGA, contacted Mr Owens on 6 August 2008. She expressed concern that the use of 2008/09 as a baseline year would not enable waste disposal authorities to plan because they would not receive notice of their final allocations until October 2009. Mr Owens replied on 7 August 2008 stating:

“The reallocation of allowances based on 2008/9 was included in the [Welsh Assembly Government]’s response to the joint [Welsh Assembly Government/Welsh Local Government Association] consultation on [the landfill allowance scheme] back in 2006. The reason for 2008/9 being the baseline was one of pan-LA equity. It will be the latest full year for which complete WDF data is available and the results will allow the fairest possible allocation at that time. This equity was urged upon us by WLGA and [local authorities] alike!”

In the light of this, Ms Jowitt suggested that the 2007/8 data should be used. On 7 August Mr Owens responded to this suggestion and said that if the WLGA formerly requested that the revised targets were issued using 2007/8 data “in the spirit of partnership and accommodating each others views and needs” he would recommend that this be done. As a result of the WLGA’s request, and as part of the defendant’s consideration of three possible options (see Dr Rees’s first statement, summarised at [49] – [50]), the defendant prepared an analysis of the impact on waste disposal authorities if the 2007/8 data was used. The analysis took the form of a spreadsheet table setting out the position of the 22 Welsh waste disposal authorities from 2002/3 to 2007/8. This showed that 18 had reduced their waste arisings since 2004/5, that the average reduction was 7.3%, that Newport’s reduction was 3.38%, and that Ceredigion’s reduction was 7.13%.

The Waste Strategy Branch considered three options; reversing the decision in the letter of 5 June 2006 and continuing with the 2001/2 data as the baseline after 2010, bringing forward the planned change by using 2007/8 data on the grounds that that was the most up to date and reliable database, or continuing with the intention to reallocate allowances based on the 2008/9 data: Rees, first statement, paragraph 60.

They concluded that each option generated winners and losers and would be the subject of a degree of challenge by authorities adversely affected by it: Rees, first statement, paragraph 61.

It was concluded that using data that was as up to date as possible was sound in principle because of the continuous improvement in the quality, accuracy and consistency of waste data returns made by local authorities.

Ms Jowitt informed waste disposal authorities of the position in an email dated 26 August 2008. She stated the Association had asked the Assembly Government to calculate what allowances would be if the 2007/8 data were used as a baseline. She provided a spreadsheet with information for local authorities. Her email also stated:

“The outcome is that 14 councils see a slightly more generous allowance than at present and 8 are negatively affected. I have checked with [the Welsh Assembly Government] and there is no allowance of phasing to assist with managing this impact (but this could be further explored but aren’t promising anything).

I appreciate that for those [local authorities] that are negatively affected this is not the outcome that is desired, but… we basically have two options:

1.

We ask that the LAS allowances post 2010 be based on 2007/8 data.

2.

[The Welsh Assembly Government] use 08/09 data without having this period of consultation and not as much time to plan accordingly.

My understanding is that [the Welsh Assembly Government] will change the baseline year – keeping the current is not an option.”

The email asked for comments by 5 September, following which a report would be prepared and submitted to the Assembly Government.

On 27 August Mr Davidson emailed Ms Jowitt stating that in spite of a growth in its population Newport had reduced municipal waste arisings. The email stated “that is a significant part of our achievement in responding to diversion targets”. It also stated:

“We now find that the Assembly plan to rebase targets on current waste arisings i.e. to allow those councils who have increased waste streams as a way of increasing percentage more landfill allowance and to penalise those councils who have acted to reduce arisings by reducing their allowance”.

The email stated that should the proposals be taken forward Newport would consider mounting a legal challenge to it.

Ms Jowitt passed what Mr Davison said on to Mr Owens, commenting that there were a few authorities, such as Newport, which had managed to reduce waste arisings. Mr Owens suggested a working group be convened to deal with the problem but because of a division of opinion in its membership the WLGA was not able to take up this suggestion. The division reflected the different impact of the proposed change on different authorities. For example, some authorities, including Ceredigion, had complained about the allocations made on the basis of the 2001/2 data.

The Waste Strategy Branch considered whether any of the eight local authorities which would receive a lower allowance by use of the 2007/8 baseline “would be significantly disadvantaged because of any effort that they had put in to reduce municipal waste arisings that was above and beyond the efforts made by other local authorities in Wales”: Rees, first statement, paragraph 62.

Paragraph 63 of Dr Rees’s first statement refers to the table (see [36]) showing changes in municipal waste figures for each local authority from 2002/3 to 2007/8. It states:

“Whilst the picture since 2002/3 is highly variable, there is a very consistent trend across Wales of a reduction in municipal waste arisings since the regulations were brought in in 2004/5. 18 out of 22 local authorities show a reduction in waste arisings, with an average reduction across Wales of 7.3%. The extent of reduction varies somewhat from one authority to the next. This reflects a complex interaction of factors…”

His team focussed on the reductions since 2004/5 because it was the first year with the new reliable figures: Rees, third statement paragraph 4.

Dr Rees states the complex interaction of factors which account for the variations in the reductions in arisings includes the way that authorities dealt with the collection of trade waste, changes in the way authorities reported figures as a result of following WasteDataFlow guidance, changes following the clarification in the definition of municipal waste, changes in types of waste accepted at civic amenity sites and different ways that authorities have promoted waste minimisation. Paragraph 64 of his first statement states:

“[F]or the majority of the 18 authorities that had achieved a reduction in waste arisings since the scheme was introduced, the extent to which reductions could be attributed to any proactive effort on their part was not, in our judgment, sufficient to justify not changing to a proper data set. In the case of Newport, on its own figures, it has reduced its municipal arisings by 3.38% between 2004/5 and 2007/8. There are some other authorities that have enjoyed a much larger reduction – Gwent (26%), Swansea (18%), Neath Port Talbot (15%), Powys (15%)…”

Dr Rees states there are specific reasons for these reductions, and that Russell Owens and he considered whether any authority in Wales could legitimately claim to be a leader in waste minimisation and whether any of the adversely affected local authorities were in this category. They concluded that variability cannot be attributed alone to whether a local authority did or did not expend a great deal of effort on waste minimisation and that that there were no clear leaders in the field in respect of efforts by Welsh local authorities to minimise waste.

Dr Rees also states they considered whether it was likely that any authority had “played the system” in order to be awarded more allowances when the planned recalculation was to be made. Of the authorities which had increased the amount of municipal waste in the period, none was considered to have deliberately increased arisings. Paragraph 67 of his first statement states:

“It was not considered that local authorities adversely affected by the change in the method of allocation would be unduly “penalised” for their waste reduction efforts. On balance it was felt that it would be fairer to change all allocations using the 2007/8 municipal waste data set and thus correct previously distorting anomalies. Such anomalies were considered to prejudice the fair allocation of allowances to a far greater extent than any variability in local authorities efforts to reduce municipal waste.”

Paragraph 11 of his third statement states that, while they considered whether authorities had deliberately manipulated the system and concluded they had not, they did not only consider this but also looked at whether authorities in fact increased their arisings in recent years.

Dr Rees concluded:

“Faced with this complex set of considerations it was necessary for WAG to take a balanced view, and to decide on an option that generated the best overall result under the circumstances that was as fair and equitable as possible, with the fewest losers as possible.”: Rees, first statement, paragraph 69.

On 17 September 2008 Dr Rees emailed Ms Jowitt about a suggestion that the Allocation Scheme Regulations be altered. This email states inter alia:

“I accept that some of the authorities that are most affected are those that have reduced their waste arisings substantially. However, they did this in the knowledge of the Ministers’ decision. The appended letter [the 5 June 2006 letter] from the Minister is really quite clear and unequivocal. We consulted, the WLGA were consulted, and a decision was made and communicated to all parties.”

In February 2009 there were exchanges of emails between Mr Owens, Dr Rees and Mr Roberts about difficulties Ceredigion faced in meeting its allocations in 2008/2009 as a result of the amount of glass it was counting as recycled in its WasteDataFlow returns and its omission to include items in its municipal waste returns which it might have included. I deal with these emails and Mr Giffin’s submissions about the implication of the references in them to political factors at [64] – [71] below.

On 26 February 2009 the Waste Strategy Branch made a submission to Mr Roberts and to the Minister for the revision of the landfill allowance scheme. Included with the submission was a draft statement of information and a decision report which contained the waste arisings figures, although in a different form to the spreadsheet sent to the WLGA. If the proposals were approved by the Minister, the statement of information and the decision report would be published by the Welsh Assembly Government. The material parts of the advice state:

“7.

Some local authorities in Wales included in their municipal waste data returns for 2001/2 (the baseline year for the calculation of landfill allowances) materials that would not now be considered to be municipal under the terms of the September 2005 guidance. Such wastes include those from the construction and maintenance of highways and the construction and maintenance of local authority managed housing. Other authorities failed to include some of their municipal waste arisings in the 2001/2 data return.

8.

These anomalies have meant that for some time certain authorities have felt disadvantaged and asked for allowances post 2010 to be revised. In this regard Ceredigion is particularly badly affected because of anomalies in their 2001/2 data return. As a result they are projected to be close to failing to comply with LAS in 2008/9, having landfilled more BMW than allowed in the first two quarters…”

Paragraph 9 refers to the 2005 consultation and the declaration by the Welsh Assembly Government to use the 2008/9 arisings data as the baseline for the allowance allocation after 2009/10. Paragraph 9 states:

“The 2008/9 year was chosen for the basis of making future allocations of allowance because it was considered to be more equitable – the common reporting method applied using WasteDataFlow would be familiar to local authorities; this would result in consistent reporting and a level playing field.”

“10.

It has recently become clear that a number of authorities believe this approach is unfair, especially those authorities that have succeeded in reducing municipal waste arisings. They believe this proposal would reward authorities whose waste arisings have increased and penalise those authorities who have been successful in reducing arisings. This is because authorities with the increased municipal waste arisings will receive a greater proportion of the Welsh total for landfill allowances for future years, thus making their task of meeting the targets less onerous.”

Paragraphs 11-14 deal with WLGA’s concern about using 2008/9 arisings data and an allocation based on criteria other than waste arisings. Paragraphs 13 and 14 state:

“13… It is … concluded that an allowance based on actual waste arisings is sound since it represents the most equitable method of allocating future landfill allowances.

14.

However, allocating allowances based on more recent waste arisings data (2008/9 instead of the original 2001/2) may penalise authorities whose municipal waste arisings have decreased over this period. Some authorities reduced municipal waste arisings artificially through reducing the amount of trade waste they collect, others have achieved this through restricting the unauthorised use of civic amenity sites by businesses. This is not really waste minimisation, since the waste is still created but just not collected by the local authority. Other authorities have genuinely succeeded in reducing household waste arisings through, for example, the introduction of fortnightly collection of residual refuse (e.g. Newport CC and Torfaen CBC), or through reducing the size of the residual bins (e.g. Denbighshire). However, these reductions have not been major so it is not considered that such authorities would be at a major disadvantage if the 2007/8 municipal waste arisings were used as the basis for allocating future allowances.”

The advice then states that, notwithstanding the preference to use more up to date municipal waste arisings, it proposed that the baseline should be 2007/8 rather than 2008/9. This was because it would provide “immediate clarity” to local authorities (paragraph 15) and remove any temptation for an authority to increase waste arisings during 2008/9 in order to be allocated a greater share of the allowance.

The document also considered the impact on each local authority of allocating allowances against a 2007/8 baseline compared with the 2001/2 baseline. Paragraph 19 states that 8 authorities incur a reduction in their allowance when compared with the previous indicative allowance but also states (paragraph 19) that “this merely addresses anomalies created by the previous method of allocation, and it can be argued that there is now more equitability and fairness, with every authority now having a more equal challenge to meet future targets”. It is also stated that it is likely that the same 8 local authorities would be affected if the change was made later using the 2008/9 figures.

Paragraphs 21 and 22 consider whether it would be desirable or fair to offer aggrieved local authorities additional funding. They conclude that it would not be. The statement of information and the decision report published by the defendant refer to anomalies in the 2001/2 data and to the later clarification as to what should be recorded as municipal waste as the background to the December 2005 consultation on options to change the method of allocation.

In the light of the representations by the WLGA on 4 March 2009 the Welsh Ministers agreed that the baseline should be 2007/8 rather than 2008/9 and set the allocations accordingly. The decision letter, dated 10 March 2009 states:

“Allowances have so far only been firmly allocated up to the 2009/10 target year with indicative allowances signalled post 2009/10.

The current [landfill allowance scheme] allocations were calculated using “baseline” data contained in the municipal waste management data survey report for 2001/2. In its response to the December 2005 joint [Welsh Local Government Association/Welsh Assembly Government] December consultation… the Welsh Assembly Government made clear its intention to allocate future allowances using more up to date municipal waste data collected from WasteDataFlow…

Following representations made that local authorities need to know as soon as possible what the allowances will be post 2009/10, a decision has been taken to now calculate allowances from 2010/11 to 2019/20 using the proportions of municipal waste arisings for each local authority in 2007/8.”

Mr Davison’s second statement states (paragraphs 10 and 11) that the propositions on which the defendants’ decision and reasoning is based cannot stand scrutiny. He refers to the measures taken by Newport in 2002/3 and thereafter which had not been taken into account in considering the effect on a change of baseline year by considering only what had happened since 2004/5. These included measures to control unauthorised access to the civic amenity site, kerbside recycling and garden waste collections, and alternative weekly collection of waste.

As to the proposition that re-basing would not cause a significant disadvantage to Newport, Mr Davison states that under the 2001/2 baseline year the council accounted for 4.43% of the total Welsh arisings but in the new baseline year, it accounted for 4.08% of total arisings which meant that the council’s allowance in the first year would be nearly 8% smaller than it would otherwise have been. This, he states, is a significant disadvantage.

Mr Davison also states the decision does not take account of waste reduction measures taken before the Welsh Ministers’ decision in June 2006 to change the baseline year. He also relied on the email from Dr Rees on 4 June 2006, to which I have referred [30].

Mr Davison also deals with the position of Ceredigion and the effect of its bringing large amounts of glass into its area which could be sent for recycling. This he says (paragraph 21) increased the amount of municipal waste being generated in Wales. Ceredigion, however, was being rewarded for that by being given a greater share of the available landfill allowances.

Internal emails in the Waste Strategy Branch comment on the large amount of glass recycling by Ceredigion: see [79]. However, Dr Rees states (third statement, paragraph 13) that Ceredigion’s activities with respect to glass recycling reflected the encouragement given in the defendants’ 2002 Wise About Waste national strategy document to authorities to maximise their recycling operations and that Ceredigion’s activities did not increase the amount of waste generated in Wales.

Dr Rees’s third statement also states he did not implicitly accept in his first statement that retrospective application of the clarified definition of municipal waste could be applied to the 2001/2 figures. What he said was that, even if it could, that would only address one of the anomalies: paragraph 17.

Political factors

The claimant relied on what it stated was great emphasis in the defendants’ documentation (including the advice to the Minister) on the position of one particular authority, Ceredigion, in justifying the re-basing. Mr Giffin observed that two of the matters which he submits are flaws in the decision making process relate to the position of Ceredigion. These alleged flaws are the failure to take into account the increase in Ceredigion’s waste arisings caused by the amount of glass recycling, and the failure to take account of the fact that any under reporting of Ceredigion’s waste in 2001/2 was caused by Ceredigion’s incompetence.

In the light of these factors, the claimant’s written and oral submissions refer to a number of internal emails within the defendants’ Waste Strategy Branch, in particular, from Mr Owens to more senior members of the Branch, Dr Rees and Mr Roberts. Mr Giffin referred to emails by Mr Owens on 4 and 10 February 2009. These respectively refer to “the immediate concern, to contrive a way forward that achieves political rather than technical objectives …” and “it’s not a position I recommend, but within the constraints of the political chicanery now surrounding this issue I think it is the fairest and most easily managed approach”. Mr Owens’ first email also states that “I cannot disguise the concerns of both myself and other officials that political imperatives are potentially interfering with the integrity of [the landfill allocation scheme]”.

In his email of 4 February 2009 Mr Owens proposed aggregating surpluses from authorities which had met their targets and reallocating them to any local authority that had failed to do so. He stated “this achieves the political objectives, protects the integrity of all Wales compliance and vests control of the whole process with WLGA officials”. Dr Rees’ response to this was to question whether it was legally possible to do this. He stated that was why he preferred his option of getting the WLGA to find one or two local authorities willing to have allowances reduced so those could be reallocated to Ceredigion and Gwynedd. He considered this should be done through formal letters with new allocations identified as a way of addressing anomalies that would be addressed after 2009/10 with the new allocation.

Dr Rees’s email to Mr Roberts, dated 9 February states “there are limits” to what the Welsh Assembly Government could do to ensure that Ceredigion did not “fail” because of a “technicality”. He stated this was because of the way the scheme was designed. In this email Dr Rees said they must not set a precedent and create a hostage to fortune that would undermine the scheme and their credibility.

The claimant does not allege that the allocation decision made by the Welsh Ministers was made for political reasons. However, relying on Mr Owens’ emails, which were sent shortly before the advice to the Minister was finalised, Mr Giffin submitted that the exchanges, which include Dr Rees asking how to do legally what Mr Owens suggests, were consistent with the political imperatives. The claimant also relies on the emphasis on the position of Ceredigion in the advice to Ministers. Mr Giffin submitted that this material is relevant to the task of the court in the present case in three ways. First, it may suggest that the defendants’ officers felt under political pressure to allow Ceredigion a “soft landing” and that may consciously or unconsciously have influenced the recommendations that they made: skeleton argument paragraph 53. Secondly, the presence of these communications is said to be a reason for the court not exercising the usual degree of deference to a decision maker who has made a decision on a matter which is largely one of technical expert judgment. It is suggested that if the decision makers have been concerned with political rather than technical objectives, the justification for such judicial self-restraint “is much diminished”: skeleton argument paragraph 54. Thirdly, where one of the decision maker’s officers has described the background as one involving “political chicanery” and “political imperatives… potentially interfering”, the court should scrutinise the decision closely to make sure that it is rational and reached after taking into account all relevant considerations and no irrelevant ones: skeleton argument paragraph 55. Mr Giffin submitted that the references to politics give rise to concern and they have not been explained in the evidence submitted on behalf of the defendant.

I do not accept these submissions. It is well known that email is an informal medium of communication. Although there is undoubtedly loose language in some of Mr Owens’ emails, his email dated 4 February 2009, 11:04 states “any such move must be legal, must be equitable…”. Moreover, Dr Rees’s position was clear. Notwithstanding saying (see his email dated 10 February, 10:03) he was very uneasy about the proposed way forward, the emails from him asked whether what Mr Owens was suggesting could be done legally and, that if so, it must be done openly through formal letters: email dated 4 February 2009, 11:23. He also stated clearly that there were limits to what could be done because of Ceredigion’s failures: email dated 9 February, 14:07. Moreover, before this time (in an email dated 4 February, 11:23) he said the solution he proposed addressed anomalies “that would be addressed anyway post 2009/10”, and “was consistent and fair”. These communications demonstrate that he was concerned to arrive at a solution that was fair, consistent with principle and legal.

It is clear that Ceredigion felt particularly disadvantaged as a result of the 2001/2 baseline and was particularly badly affected because of what paragraph 8 of the advice described as anomalies in their data return. It is also clear that “anomalies” meant “errors”. Officials stated that a cause of its errors was its incompetence in completing its returns. Although, in the light of Ceredigion’s complaints and representations, consideration was given to adjusting the allocations in the last year of the first round of allocations, that was not done. There is no evidence that what Mr Giffin has described as “the disturbing political background” had any impact on the officials in relation to that first round. The emails show a concern to reach decisions on a lawful basis. There is also no evidence of any similar concerns or desire to set the baseline for the second round of allocations to assist Ceredigion. Indeed, Ceredigion had reduced its arisings by 7.13% in the period considered by the Waste Strategy Branch.

The defendant was aware of the potential problems with the 2001/2 data as early as June 2004: see [22]. The problems of under reporting and inconsistent reporting were not confined to Ceredigion. It was those problems inter alia which led the defendant to adopt a new data recording system and to decide in 2006 to use data from that system to fix the baseline rather than continuing with the 2001/2 baseline. It was not improper for the defendant to do this. It did so almost two years before the emails upon which Mr Giffin relied. It is understandable that, if Ceredigion was particularly affected and particularly vociferous in its representations, the defendant used it as an example of the problems that had arisen with the data for 2001/2. It was highlighted as an example at one end of the spectrum. Paragraph 8 of the advice makes it clear that there were other authorities which felt disadvantaged and asked for allowances after 2010 to be revised. Paragraph 14 uses Newport and Torfaen as two examples of the other end of the spectrum. For these reasons I do not accept that Mr Owens’s emails should give rise to particularly strict scrutiny of the defendant’s decision or for there to have been less self-restraint in the review of matters of technical or expert judgment.

Rationality, and relevant and irrelevant considerations:

It is common ground that the European Directive and the UK and Welsh legislation impose stringent requirements upon public authorities for the reduction of landfill waste. The required reduction in biodegradable municipal waste going to landfills is 75% of the baseline total by 2010, and 35% of that total by 2020. The permitted tonnages for Wales are 710,000 tonnes in 2010 and 330,000 tonnes in 2020.

Use of data produced by the WasteDataFlow system: I reject the submission made on behalf of Newport that the Welsh Ministers were not entitled to base waste disposal authorities’ share of waste arisings on the most recent data, that is the data produced by the WasteDataFlow system which was introduced in 2004. It cannot be the case that, because the Ministers used a different set of data for the allocations made in the first round, they could only use other data in the second round if they could show that the earlier data was totally unreliable. That, however, was the gist of Mr Giffin’s submissions. Where, as is the case here, the WasteDataFlow data is considered more reliable and consistent, it was prima facie legitimate to use that data.

Although the focus of comment about the earlier data in the documentation concerned the uncertainties and inconsistencies about the definition of municipal waste, there are also references in that documentation to other “anomalies”. It was suggested on behalf of the claimant that anomalies in the pre-2004/5 data operated on a swings and roundabouts manner so that no authority was particularly disadvantaged by their presence. There is, however, no evidence that the “anomalies” operated in this way. The Welsh Ministers were entitled to conclude that, to achieve fairness between waste disposal authorities, they should use more up to date data produced by a system in which they had confidence and which the WLGA described as “robust”: see Mr Parry Hughes’ foreword to the December 2005 consultation quoted at [26].

The decision in principle to adopt a more recent year with more recent and reliable data was taken by the Welsh Ministers as long ago as June 2006. The response to the September 2005 Joint Consultation stated that the baseline year for the calculation of allowances in the second round for the period 2009/10-2019/20 would be 2008/9 when the reporting of arisings through WasteDataFlow would be consistent. The provision of indicative allowances based on the 2001/2 figures did not give rise to any legitimate expectation that those figures would be used. That indication was only given in response to a request by the WLGA. The change from 2008/9 to 2007/8 was later made in response to representations by the WLGA to give waste disposal authorities more certainty and time to plan. The claimant has not complained about the change from 2008/9 to 2007/8. Its challenge is based on the departure from the 2001/2 baseline to a later year and paragraph 19 of the claimant’s skeleton argument states that whether the baseline is 2007/8 or 2008/9 does not materially affect the points at issue.

Recalculation of the data for 2001/2: Although at an early stage, in particular at the time of the December 2005 consultation and the June 2006 response, the defendant contemplated recalculating the waste arisings data for 2001/2 in the light of the clarification of the definition of municipal waste, even then this was said to be difficult. It was also said that retrospective application of the clarification would depend on the accuracy of the 2001/2 data. As I have indicated, the evidence is that there were concerns about its accuracy from an early stage. This was not only apparent from the documentation about setting the allowance but also from some of the internal email communications between members of the Waste Strategy Branch. Whether or not Mr Rees’s first witness statement (paragraphs 45-6 and 76) implicitly accepted that such retrospective recalculation was possible, and whether or not it would in fact have been possible, it was always recognised that it would be difficult to do and would depend on the accuracy of the data submitted in 2001/2. By the time the decision was made there was a broad consensus that the 2001/2 data was flawed. Moreover, experience had been gained with WasteDataFlow and the reliability of the data produced by it. It was not in these circumstances irrational or perverse of the Welsh Ministers to decide not to engage in a difficult exercise of retrospective recalculation of flawed and inaccurate data in an attempt to eliminate the errors.

A perverse penalty to authorities whose arisings decreased before 2004/5? Was doing this irrational because it gave a perverse reward to waste disposal authorities which did not achieve reductions in the years 2001/2 to 2003/4? Did the Welsh Minsters fall into a reviewable error in not considering the reasons that some authorities, especially Ceredigion, increased their waste arisings in that period?

Mr Davison’s evidence on behalf of Newport pointed to a number of reductions in Newport’s waste arisings. He refers to alternate weekly collections, a refusal to accept commercial waste in municipal sites, and good practices such as the increase in collections of garden waste and garden waste arisings. As to these factors, the evidence is that alternate weekly collections were included in the data considered by the defendant in assessing whether waste disposal authorities would suffer substantial disadvantage by the adoption of a new baseline because they had started in 2005/6. Newport also relied on the fact that before 2004/5 it did not accept commercial waste in its municipal sites. Since other authorities did at that time accept such waste, but would not be including it in their arisings after the clarification, Mr Giffin submitted that not taking account of the earlier period put Newport at a disadvantage. The defendant, however, did not accept that matters such as the refusal to take commercial waste in municipal sites was waste reduction because the waste still arose and would need to be disposed of in some way. It was not suggested that it was not entitled to take this view. One of the other matters relied on by Newport was the increase in its garden waste arisings. However, evidence of an increase in arisings in the earlier period as a result of this cannot support Newport’s contention that including such evidence would have benefited it. This evidence, at most, serves to suggest that Newport’s relative position would have been better if this increase was not taken into account. For these reasons, taking account of these factors in assessing whether a local authority or local authorities generally would suffer a substantial disadvantage was neither irrational nor did it amount to the introduction of an irrelevant consideration.

The focus of Newport’s complaint has always been that other authorities, and in particular Ceredigion, increased their arisings in the earlier period and thus their proportion of the total arisings, at a time when Newport was reducing its arisings. In the case of Ceredigion, the increase was said to be because of the very large amounts of glass recycling it undertook in the earlier period. Dr Rees referred to Ceredigion as counting a “simply incredible amount of glass” as being recycled: email dated 4 February 2009. Mr Giffin submitted that if that increased proportion is included in the base for determining the proportion of allocations between authorities, Newport, which had been reducing its arisings, would be unfairly disadvantaged.

The decision under review concerned a relatively complex comparative process on a technical subject. Notwithstanding this, Mr Giffin invited me to scrutinise it closely. He accepted that he was inviting me to scrutinise it more closely than would normally be appropriate in a judicial review of a decision such as this. He did so because of the reference in the email to political factors regarding Ceredigion and the undesirability of allowing it to fail to reach its target. He argued that these factors affected (possibly unconsciously) the defendant’s decision about the baseline. I have rejected this submission for the reasons given at [69] – [71].

I have referred to the email communications within the Waste Strategy Branch showing the defendant was aware of Ceredigion’s extensive glass recycling activities. I do not, however, accept that the Welsh Ministers were required to take into account each authority’s particular activities in the earlier period when determining whether an authority or authorities would be substantially disadvantaged by the choice of a particular baseline for the second round of allocations. The Welsh Minsters were entitled to look at overall trends in and across waste disposal authorities individually and as a group. This is what they did.

The conclusion that re-basing would put authorities such as Newport at a “major” or “substantial” disadvantage: Mr Giffin also submitted that the statement in paragraph 14 of the advice to the Welsh Ministers that the reductions by authorities such as Newport “have not been major so it is not considered that such authorities would be at a major disadvantage if the 2007/8 municipal waste arisings were used as the basis for allocating future allowances” is irrational. He submitted that the first sentence of paragraph 14 suggests that what was under consideration was the decreases in the period since 2001/2 and that the Minister would have considered that this was the basis of the advice she was being given. The spreadsheet sent to the WLGA in August 2008 (see [36]) contained data from 2002/3 but because the defendant’s Waste Strategy Branch had lost confidence in data which had not been compiled by the WasteDataFlow system, it only considered decreases after 2004/5. The advice given to the Minister was based on that data. Although that spreadsheet itself does not appear to have been submitted to the Minister with the advice, by looking at the entirety of the document, including the attached draft statement of information and the decision report, I am satisfied that the Minister would have been aware of the basis of the advice given to her.

Mr Giffin maintained that to describe a reduction of allowance of almost 8% in the first year of the allocation (Footnote: ¹) and a greater cumulative effect over the entire period as not a “major disadvantage” was irrational. Paragraph 14, however, addresses and is concerned with reductions in waste arisings and not with allowances. This is clear from the second sentence and the last two sentences. The data analysed by Dr Rees’s department was concerned with arisings and the reductions in those arisings. That data showed an average of 7.3% reduction by waste disposal authorities in arisings. It was this which enabled the Waste Strategy Branch to reach the conclusion that waste disposal authorities were not put at a substantial disadvantage by the change. I do not accept that it was irrational to look at arisings rather than allowances. Mr Giffin accepted that the claimant’s reduction in arisings was modest, but submitted that, when compared to increases by other authorities, it was not insignificant. This comparison, however, relates to the earlier years and to arisings calculated by the previous method which is generally accepted to contain errors, both of under-reporting and of over-reporting.

The next point is the meaning of “substantial disadvantage”. Dr Rees’s third statement states that by “disadvantage” was meant an inability by a waste disposal authority to meet its target. Even a generous reading of paragraph 14 does not enable me to conclude that this would be clear to the reader. The alternatives are that “disadvantage” refers to the allowances or to smaller reductions in arisings. For the reasons I have given, paragraph 14 is about reduced arisings and not allowances. The candidates are therefore smaller reductions, or an ability to meet the target. In the light of what Dr Rees states in his third statement I shall consider both. The defendant’s data showed that there was a downward trend by authorities with a 7.3% average reduction since 2004/5 when WasteDataFlow was introduced. It knew that 18 of the 22 waste authorities had reduced waste arisings. It is clear that the defendant applied its mind to the question of whether, given the 7.3% average reduction, in those years, the waste disposal authorities which would lose out by reason of the re-basing were substantially disadvantaged. The defendant’s conclusion that they were not, cannot in my judgment be described as Wednesbury unreasonable or irrational. Mr Davison’s evidence was that the impact of re-basing was to reduce Newport’s share of the total Welsh waste arisings from 4.43% to 4.08%; i.e. a reduction of 0.35%: see [59]. Newport’s reduction was smaller than that of the other authorities which would lose out because of the re-basing.

As to authorities’ ability to meet targets, the evidence before me of what has happened since the decision that is challenged was taken is that the defendant’s assessment has been vindicated. But that must be left aside since it cannot affect the legality of the decision taken at the time. Nevertheless, I do not accept Mr Giffin’s submission that, if “disadvantage” means an inability to meet targets, it would not be rational to base policy on this because this disregards the additional cost a waste disposal authority would need to incur either financially or in time to meet the new targets.

The defendant knew that changing the baseline year would adversely affect some waste disposal authorities: see paragraph 10 of the advice. It also knew that because of the anomalies in the previous system for collecting data others would gain: see paragraphs 7 and 8 of the advice. All eight authorities that would lose out by the change would potentially incur additional costs in meeting the new targets. The Welsh Ministers looked at the percentage of reduced arisings across the board. Given their balancing role, their duty was to ensure a fair system based on reliable data. The requirements of the Directive, WETA and the Regulations were stringent. Any of the losers would have to incur additional costs to meet their targets. If the Welsh Minsters were satisfied that all waste disposal authorities would meet their targets, I do not consider that it was unlawful to use this criterion to determine the question of disadvantage. Accordingly, whether one focuses on reduced arisings or ability to meet targets, I do not consider for the reasons given that the advice, and the decision based on it, were irrational or otherwise flawed on public law grounds. The defendant was entitled to look at overall trends revealed from the WasteDataFlow system which provided consistency and which did not result in the anomalies produced by the previous data.

The significance of proactive steps: Mr Giffin submitted that Dr Rees’s evidence, that any reductions were attributable to factors other than any particular effort by individual waste disposal authorities to minimise waste, contradicts what is said in paragraph 14 of the advice. He also submitted that it was inconsistent with the recognition by the defendant and Dr Rees at an earlier stage that Newport had successfully reduced waste arisings and had bucked the trend in doing so: see Dr Rees’s email to Mr Davison dated 4 June 2006 and to the WLGA dated 28 August 2008. The first of these, the “bucking the trend” email, was sent before he saw the 2005/6 results. Prior to that, almost all authorities had experienced an overall increase in waste arisings. It was in 2005/6 that for the first time the majority of the authorities’ data showed a decrease in waste arisings compared to the previous year. That downward trend has continued since then. Dr Rees’ email refers to the earlier period, but the advice refers to the later period. The acceptance in his email to the WLGA that some of the authorities most affected by the re-basing were those that had reduced their waste arisings substantially is also not inconsistent with the advice. The advice accepts that there are winners and losers as a result of the system. Eight waste disposal authorities, including Newport, were adversely affected by the decision to re-base. The question addressed in the advice is whether they were substantially disadvantaged by this.

As to the proactive steps taken, I have dealt with the position of the defendant in relation to the matters upon which Newport relies: see [78]. Of those matters, only the introduction of fortnightly collections of refuse was recognised by the defendant as a reduction. The timing of the introduction of fortnightly collections by Newport meant that that reduction was taken into account in the data considered by the defendant. What Dr Rees’s statement in fact says is that “the extent to which reductions could be attributed to any proactive effort on their part was not, in our judgment, sufficient to justify not changing to a proper data set”. The position therefore is not that Dr Rees did not accept that some of the reductions were due to proactive steps. He was concerned with the proportion of the reductions due to those steps and the overall significance of them. I do not consider that the defendant fell into error in this respect.

For these reasons this application must be dismissed.