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

In allocating landfill allowances, a public authority may adopt the most recent data where it reasonably considers that data more reliable, consistent and equitable. It need not continue using an earlier baseline merely because that baseline was used for a previous allocation round, nor must it prove that the earlier data was wholly unreliable. It may assess disadvantage by reference to overall trends and authorities’ ability to meet future targets, rather than analysing every individual waste-reduction measure. A decision to avoid retrospective recalculation of flawed historical data is not irrational merely because some authorities are adversely affected. Indicative figures do not create a legitimate expectation that the same baseline will govern final allocations where the authority has clearly reserved its position.

Newport City Council, one of the Welsh waste disposal authorities, applied for judicial review of the Welsh Ministers’ decision of 4 March 2009 to calculate landfill allowances for 2010/11 to 2019/20 using 2007/08 waste-arising data. Earlier allocations had used 2001/02 data, and indicative figures had been issued on that basis. Newport contended that the change penalised authorities which had reduced waste since 2001/02 and rewarded authorities whose arisings had increased. It alleged irrationality, reliance on untenable assumptions, and failure to consider relevant matters, including individual waste-reduction measures and the position of Ceredigion.

The central issue was whether the decision to rebase the allowances on newer WasteDataFlow data was unlawful on ordinary public-law grounds.

1. Claim dismissed. The Welsh Ministers’ decision to use 2007/08 data for the second allocation period was lawful.
2. It was prima facie legitimate to use WasteDataFlow data because it was considered more reliable and consistent. The Ministers were not required to establish that the 2001/02 data was wholly unreliable before adopting a later dataset. They were entitled to conclude that the older data contained significant anomalies and that newer data offered a fairer basis for allocation.
3. The Ministers were also entitled not to undertake a difficult retrospective recalculation of the 2001/02 data. By the time of the decision there was broad agreement that the historical data was flawed, and recalculation depended upon its accuracy.
4. The decision involved a complex comparative and technical assessment. The Ministers could examine overall trends across the waste disposal authorities rather than investigate every authority’s earlier activities individually. They were not required to take account of each particular waste-reduction measure undertaken before the reliable WasteDataFlow data became available.
5. The conclusion that rebasing would not cause a substantial disadvantage was not irrational. “Disadvantage” could be assessed by reference to reduced arisings or to an authority’s ability to meet its future target. It was lawful to use those criteria while balancing fairness between authorities and the stringent requirements of the landfill regime.
6. The indicative allowances based on 2001/02 data did not create a legitimate expectation that the same baseline would be used for final allocations. The Ministers had previously stated their intention to use a later dataset, and the figures were expressly indicative.
7. The evidence concerning Ceredigion and internal emails did not justify heightened scrutiny. The decision was made on a lawful and equitable basis, and the use of Ceredigion as an example of the historical data problem did not show improper political influence.