R (Tarmac Aggregates Ltd) (applicant) v Secretary of State for Environment, Food and Rural Affairs  EWCA Civ 1149 17, November 2015
This case considered the application of the definitions of 'waste recovery' and 'waste disposal', in the Waste Framework Directive 2008/98/EC (WF Directive), to the proposed operations for restoration of a sand and gravel quarry. The particular facts of this case are worthy of closer examination as they do show a step change towards a more purposive interpretation of the law. A number of specific practice points arise from the decision, and as such it is likely to be of particular interest to both waste and quarry operators as well as waste professionals.
The proposed operations were the restoration of a sand and gravel extraction facility to provide a nature reserve and a recreational open water facility for local amenity following on from an extension of the extraction facility.
The planning permission for the planned extension and restoration included a planning condition that the site would be restored in accordance with an approved and agreed environmental statement and plan. This plan, incorporated in the planning permission, showed footpath 51 crossing the site with the environmental statement envisaging that the footpath would be temporarily diverted during the quarrying activities before being reinstated to its original alignment as shown on the definitive map. The restoration plan was approved by the Local Authority, and the EA which was consulted on the application had 'no objection subject to condition'.
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 proposed backfill material, the use of inert waste materials rather than primary materials was a cost-effective way to comply with the restoration condition.
The applicant applied to the Environment Agency (EA) for a 'Use of waste in construction - Standard Rules Permit' (Permit) 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.
The EA refused the applicant's application for the Permit on the basis that what was proposed in the waste recovery plan was not a recovery operation. Specifically, in its determination advice, the EA concluded that;
"the construction of the path itself using waste material or deposit of waste to create footings to directly support the path could be considered use of waste in construction, however the need to deposit more than 8 metres of waste to provide this elevated platform is seen as a land restoration proposal."
Having refused to grant a waste recovery permit, the EA then resisted the Appellant’s appeal to the Secretary of State, on the basis that it was not satisfied that in the event of waste not being able to be used, non-waste materials would be used in their place (as opposed to the Appellant obtaining a variation to the planning condition requiring some other outcome), due to the high cost of importing non-waste materials. The inspector, appointed by the Secretary of State to hear the appeal, upheld the EA's decision and the subsequent application to judicially review the inspector's decision was dismissed by the Planning Court judge in the High Court.
The applicant then took the matter to the Court of Appeal which had to consider the applicant's argument that the inspector had been wrong to uphold the EA's refusal of the Permit. That is also the decision considered by this briefing.
'Recovery' or 'Disposal'
In setting out the legal framework in which the facts had to be considered Lord Justice Sales noted a number of differences between the current WF Directive and an earlier directive which it replaced.
The earlier directive merely listed recovery and disposal operations in two separate Annexes, which in some cases gave rise to difficulties in categorisation as one or the other. A considerable body of ECJ case law developed to provided assistance on the categorisation of operations into either one or the other (i.e. waste or recovery). The general test distilled from these case could be summarised as, if waste were not available for a given operation, would that operation none the less be carried out using some other material e.g. primary raw materials?
Lord Justice Sales stated that it was not clear how far the case law now applied to the current WF Directive, which (unlike the previous directive), contains a general definition of recovery in Article 3(15), "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, (…)".
The Court of Appeal (CA) held that the proposed operations could fall within two categories within the WF Directive; R10 "Land treatment resulting in benefit to agriculture or ecological improvement" (Annex II - recovery), and D1 “Deposit into or on to land (e.g. landfill, etc.)” (Annex I – disposal). Because of the potential to fall into both of these categories the CA considered that, “it is necessary to go further and ask whether the principal objective of the operation is to use the waste to secure ecological improvement of the site rather than to dispose of the waste.” The CA rejected the applicants first ground of appeal that the proposed operation necessarily fell within the category R10 Waste Recovery because it would make more than a de minimis contribution to ecological improvement.
To this extent also the CA appears to have agreed with the Secretary of State and the EA on the interpretation of the law because it rejected the applicant's first ground of appeal as contrary to the ECJ case law and considered it necessary to examine the facts to establish, on the evidence available, the principal objective of the proposed operation.
The CA held that all the evidence indicated that the applicant would be required by the Council to comply with the planning obligation to which it was subject to restore the quarry site, whether waste was used for that purpose or not. The CA held that there was no evidence to the contrary and that any suggestion otherwise was 'pure speculation' on the part of the planning inspector.
From the judgement it appears that key to the CA's finding was firstly, that the Council had confirmed its objections for the restoration of the quarry during the inquiry. Secondly, the CA referred to the fact that the inspector himself found that it would be financially viable for the applicant to carry out the restoration of the site using primary materials. Consequently there was no reason for the Council to release the applicant from its obligation.
The CA 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.
The CA appears to have placed emphasis on the fact that the restoration condition 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 this or the need for the applicant to discharge the restoration condition.
The CA did not decide the point, but noted that the inspector's own finding was that the applicant could, without it becoming unviable, have complied with the planning condition using only primary materials. The CA found that this meant that there was no evidence that the applicant would have taken any route other than to comply with the restoration condition and no reason to believe that the Council would have entertained any alternative than compliance with the condition.
Lord Justice Sales did not determine the question whether in order for an operation to constitute recovery under the WF Directive it is necessary to investigate the likelihood that the proposed backfill operation would not be carried out if waste materials were not to be available. Instead Lord Justice Sales relied on the inspector's finding on that point and stated that this was sufficient to determine the appeal.
The agreed planning condition and the requirement to reinstate the footpath created a situation whereby the applicant was obliged to undertake the work. This lead to the finding that the proposed use of waste was considered recovery and not disposal.
In future this finding may provide a potential commercial reason to accept more stringent planning conditions on restoration where this could in turn, subject to suitability of the material, allow an operation to be considered recovery and not waste disposal. There would be an obvious potential financial benefit to such a position.
In this case the proposed operation, despite the question of definition, fell into one of two specified operations contained within Annex II of the WF Directive. However, these lists are not exhaustive and the question arises what other operations might be found to be recovery? For example might raising the level of land for flood prevention purposes using non-primary material in residential and commercial developments be held to be recovery so that the EA should grant a Permit for this? The EA may seek to argue that a bespoke environmental permit would be required.
Finally, it is worth noting that during the case, the decision made by the EA to allow the use of Crossrail spoil to create a nature reserve at Wallasea was referred to by the claimant as an example of Standard Rules Permits being accepted for use where the backfill operation would not have actually ever been carried out using primary materials. The question was therefore raised as to whether such circumstances could still be considered a recovery operation. If not, the applicant argued that the EA had itself erred in law in granting the Wallasea permit. The ECJ case law is not explicit on this issue and Lord Justice Sales reserved judgement on this question.
There is clearly a fine line to be drawn and each case will still need to be judged on its own factual merits. This decision suggests that the clearer that the obligation is to undertake works that could use a primary material, and the more feasible that option is, the more likely it appears that the use of waste in such an operation would be considered waste recovery.
It remains to be seen as to whether in light of the judgement the EA will update its guidance and adopt a slightly different position in the future: we watch this space with interest.