Court of Appeal considers the distinction between waste recovery and waste disposal 20Jan2016

In a case with important implications for the waste and construction industries, the Court of Appeal has considered the distinction between waste recovery and waste disposal under the Waste Framework Directive (“WFD”). The Court reversed the decision of an Inspector appointed by the Secretary of State for Environment, Food and Rural Affairs to uphold the Environment Agency’s refusal to grant Tarmac Aggregates Limited a standard rules environmental permit for the recovery of waste.

 

The principal issue in the case was whether Tarmac’s intended use of waste fell within the definition of recovery set out in the Article 3(15) WFD, as follows:

 

“‘recovery’ means any operation the principle result of which is waste serving a useful purpose by replacing other materials which would otherwise have been used to fulfil a particular function, or waste being prepared to fulfil that function, in the plant or the wider economy.

 

The waste in question in R (Tarmac Aggregates Limited) -v- The Secretary of State for Environment, Food and Rural Affairs and The Environment Agency [2015] EWCA Civ 1149 was spoil from quarrying operations conducted by Tarmac at Methley Quarry, near Leeds. Tarmac wished to use the waste in landscaping works, which it was required to carry out at the Quarry under a planning condition imposed by Leeds City Council. The conditions attaching to a standard rules environmental permit for the recovery of the waste would be less onerous and less expensive to comply with than those attaching to the “bespoke” environmental permit that would be required for disposal of the waste.

 

The EA refused to issue a standard rules permit to Tarmac on the grounds that the landscaping works did not constitute a recovery operation. Tarmac’s appeal against that decision was dismissed by an Inspector appointed by the Secretary of State.

 

The Inspector found that, while it would have been financially viable for Tarmac to use virgin materials for the landscaping, it would be in Tarmac’s best interests to reduce costs. He concluded that Tarmac would very likely have devised an alternative scheme if non-waste material was to be used. For this reason, the Inspector found that the use of waste for carrying out the works would not be serving a useful purpose by replacing other materials that would otherwise have been used to fulfil that function. The Inspector’s decision was subsequently upheld in the High Court by Patterson J.

 

The Court of Appeal, however, found that the Inspector’s conclusion was “irrational” (paragraph 40 of the judgment). The Court noted that Tarmac was under a clear legal obligation, by reason of the relevant planning condition, to carry out the landscaping works. The Council had never given any indication that it would not hold Tarmac to the condition. The Court described the Inspector’s consideration of potential alternative landscaping schemes as “pure speculation” and “unsupported by any evidence” (paragraph 42).

 

The Court held that the landscaping works would clearly require a substantial amount of material. If waste materials were not to be used, then virgin materials would be required. In other words, the landscaping works were bound to be carried out whether waste was used or not. It was clear, therefore, that the use of waste was indeed replacing other materials that would otherwise have been used for that function. The Court quashed the Inspector’s decision and replaced it with a determination that the EA should issue a standard rules permit in the terms sought by Tarmac.

 

This decision clarifies the approach to be taken by the EA when deciding if a waste operation should be treated as recovery or disposal. It is likely to result in more activities being classified as recovery operations, which can be carried out under a standard rules permit. The consequences of that will be a decreased regulatory burden and, ultimately, lower costs, for many in the waste and construction industries.