Recovery or disposal?

This case concerned the reuse of spoil from a quarrying operation to remodel/landscape the quarry. The Court had to consider whether the use of spoil…

On 17 November the Court of Appeal published its judgment in the judicial review case of Tarmac Aggregates Ltd, R (on the application of) v The Secretary of State for Environment, Food and Rural Affairs & Anor [2015] EWCA Civ 1149.

The case concerned the reuse of spoil from a quarrying operation to remodel/landscape the quarry. The Court had to consider whether the use of spoil should be considered a “recovery” or a “disposal” operation pursuant to the Waste Framework Directive.

The Environment Agency was arguing that the use of the spoil was a disposal operation requiring a bespoke environmental permit as opposed to a standard rules permit for a recovery operation.

The issue arose because of the overlap in the WFD between a stated recovery operation – “land treatment resulting in ecological improvement” and a stated disposal operation – “deposit into or onto land”.

The key consideration identified by the Court was whether the waste was being used for a “genuine purpose” i.e. in the absence of the waste would that operation be carried out using some other material. This followed the approach previously adopted by the CJEU.

The Court decided the use of the waste material by Tarmac would substitute the need to use other primary materials. It could properly be considered a “recovery” operation requiring a standard rules permit.

The decision gives rise to the prospect of other challenges to the EA’s often strict application of the recovery vs disposal question.

It is also interesting in light of the pending announcements concerning the circular economy.  The underlying principle in the approach adopted by the Court is that where it is more environmentally beneficial to use waste as opposed to other materials that should be permitted. This approach is one that will surely gain more support when the details of the circular economy are announced.

 

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