Where waste is used as backfill in restoration operations required to comply with a planning condition and intended to secure an environmental benefit, this is not a waste disposal operation.  This could have significant implications for the minerals industry because of the considerably reduced compliance costs.

In 2007, Leeds City Council granted planning permission to Tarmac Aggregates Limited for the extension of a sand and gravel extraction operation at Metheley quarry near Leeds.  The planning permission was subject to a planning condition requiring post extraction restoration works to be carried out at the quarry to create two areas of wetland divided by a land bridge along the original line of a footpath.

The restoration proposal approved by the local authority required the use of about 70,000 tonnes of material as backfill to allow remodelling of the physical contours of the site.

Given the amount of backfill material required to restore the quarry, the use of inert waste materials rather than primary materials was a cost-effective way to comply with the restoration condition because activities involving waste need an environmental permit.  In February 2013, Tarmac Aggregates applied to the Environment Agency (“EA”) for a ”standard rules” environmental permit for a waste recovery operation to enable the use of inert quarry waste as backfill material.  The EA refused the application on the basis that the use of quarry waste in this manner did not constitute a waste “recovery” operation for the purposes of the Waste Framework Directive (Directive 2008/98/EC) but a waste “disposal” operation which required a bespoke environmental permit.

On appeal, an inspector appointed by the Secretary of State upheld the EA’s decision.

The High Court dismissed Tarmac Aggregates’ application to judicially review the inspector’s decision.  Tarmac Aggregates appealed to the Court of Appeal and judgment was given on 17 November 2015.

The Court of Appeal found that the restoration condition of the planning permission relating to the site was based on clearly identified public interest grounds and that there was no evidence that the local planning authority had changed its mind about the importance of the public interest or the need for Tarmac Aggregates to discharge the restoration condition.

The Court held that the inspector had erred in his assessment of the facts of the case and should have found that the backfilling operation to create lakes and a land bridge at the site was a legitimate operation which would have had to be carried out in any event.  Substantial quantities of fill material would need to be used to restore the quarry site in accordance with the restoration condition, whether waste or primary materials were used.

Although not as profitable, the use of primary materials was viable.  The use of waste instead of primary materials, which would otherwise have to be used, is a “land treatment resulting in benefit to agriculture or ecological improvement”, a type of recovery operation listed in Annex II of the Waste Framework Directive.  Thus, the Court held that the backfill operation was “recovery”.

The Court of Appeal quashed the inspector’s decision and replaced it with a determination that the EA should issue a standard rules environmental permit for a waste recovery operation, which would allow the use of waste for the backfill operation.