The respondent county council was, as a waste disposal authority, responsible for arranging the collection of household waste in its area, a service it generally had to provide free, and the collection of commercial waste, a service for which it was obliged to charge. The council used the same vehicles and employees to collect both types of waste and recovered a proportion of the common costs based on an estimate of how much of the total was commercial waste. Charges payable by businesses were reviewed annually, but the council’s underlying approach to charging remained the same each year. The applicant, a private waste collection company that competed with the council for the provision of waste management services, applied pursuant to section 70(1) of the Subsidy Control Act 2022 for a review of the council’s most recent annual charge rate decision. It contended that (1) the costs savings that resulted from dealing with household and commercial waste together enabled the council to charge businesses less than it would charge if the commercial waste collection operation were undertaken separately, and (2) the provision of services to the council’s waste collection operation at below market cost was a “subsidy” within the meaning of section 2 of the 2022 Act that could not be made without a consideration of the subsidy control principles. The council contended that (1) it had not given a “subsidy” within the meaning of section 2(1) of the 2022 Act, and (2) its annual charge rate decision was not a “subsidy decision” amenable to review under section 70(1).
On the application—
Held, application refused. Since the definition of a “subsidy” in section 2 of the Subsidy Control Act 2022 required the conferral of an economic advantage by a public authority to an enterprise, the movement of the advantage from one person to another was the very essence of a subsidy. Accordingly, on a natural reading of the 2022 Act, a person designated a public authority could not also be an enterprise in relation to the advantage under consideration. In the present case it was not possible to identify any person other than the council implicated in the provision of waste collection or disposal services. The giver of the economic advantage therefore being the same person on whom the advantage was conferred, there was no “subsidy” within the meaning of the 2022 Act (paras 28–31, 39, 44, 45, 48, 52).
Per curiam. A “decision” within the meaning of the 2022 Act can be detailed and long, considering all manner of factors and facts, or, in the case of repeat decisions, where matters have previously been considered, and the circumstances not materially changed, short and bereft of analysis and consideration. Such short repeat decisions are entirely appropriate in circumstances where the original, detailed, analysis still pertains (para 49).
Michael Bowsher KC and Ligia Osepciu (instructed by Tilly, Bailey & Irvine LLP, Billingham) for the applicant.
Aidan Robertson KC and Richard Howell (instructed by DWF Law LLP) for the council.