[2009] All ER (D) 167)

High Court considers whether demolition material transferred inter-site constitutes 'waste'.

The defendant, a waste business operator was contracted by an owner of garden centres to collect demolition material from one garden centre site in Standish and take them to another site in Cheadle. The defendant was informed that the materials were intended to be used to make good a car park at the Cheadle site.

The garden centre owner did not have a waste management licence authorising the deposit. The defendant was prosecuted under the Environmental Protection Act 1990 for depositing the materials in the absence of an authorising waste management licence and for failing to take reasonable measures to prevent a contravention of that Act by the garden centre owner. The Magistrates' Court found the defendant not guilty on the basis that the material deposited was not waste as defined by the Waste Framework Directive but was a valuable commodity intended for immediate re-use.

The Environment Agency appealed and on 17 March 2009, the High Court held that the Magistrates' Court had come to the correct decision that the material had not been waste upon its delivery. At that stage, the garden centre owner, whose property it was, had had no intention of discarding the material. That was not a mere possibility; the garden centre owner had indicated to the defendant that, as far as was practical, it was its intention to use the material immediately, thus raising no presumption of discarding.

While this decision deals with intra-group, inter-site, movements of material, and as with all waste decisions is highly dependent on its facts, there are reasons why, at law, the same principles could apply to non-connected movements. The judgment here expressly recognises that for the purposes of the analysis at the time of delivery, it did not matter where the materials had come from. The Court relied heavily in reaching its view on the findings of fact made by the magistrates concerning the specific intentions of the garden centre owner at and prior to the time of the transfer.

The decision here supports the position that where there is a clear and known intention to put to use material moved from one site to another, particularly where it is to be used promptly on its arrival at the destination site, and that material is then used promptly, that it is incorrect at law to treat this material as being waste. Further support for the outcome in this particular case can be found in other UK and EU law.

In connection with how waste is defined, the revised EU Waste Framework Directive came into force on 12 December 2008 and is required to be implemented by 12 December 2010. It does not change the definition of waste but does provide that specific criteria may be developed by the Commission for determining the status of specific by-products and for when certain specific types of waste cease to be waste as a result of a recovery or recycling operation. Construction and demolition waste was among the waste streams to be considered by the Commission's Joint Research Centre's report in coming to its recommendations on a general methodology and principles for defining end-of-waste criteria. The Commission is expected to publish its proposals for end-of-waste criteria by the end of 2009.