UK: Is it Waste?

There has been yet another decision on the question of what constitutes "waste".

A string of cases in recent years have attempted to define what constitutes "waste" and when waste can safely cease to be classed as such. The most recent judgment is the Court of Appeal decision in R v W, C and C (11 May 2010).

The case started when the owners and manager of a farm (the "farmers") were charged under section 33 of the Environmental Protection Act 1990 ("the Act") with:

• knowingly permitting the deposit of controlled waste without a waste management licence; and
• disposing of or keeping controlled waste without a waste management licence.

They were being prosecuted because some 9,126 tonnes of soil and subsoil had been deposited at their farm between 2007 and 2008. The farmers had been paid over £20,000 to receive these materials. There was no waste management licence. (NB "waste management licences" have subsequently become "environmental permits".) The soil and subsoil had been extracted from a nearby property in the course of construction of a new hotel. The Environment Agency believed that it constituted "controlled waste" within the meaning of the Act.

The case was heard in the Crown Court. The farmers asserted that the material was for the purpose of creating an area of hard standing for the extension of their farm facilities and the construction of a new farm building. Indeed, it had already been put to use. They argued that there was no case to answer because:

• The Environment Agency had failed to establish that the soil and subsoil was waste.
• Even if the Environment Agency had established that the material was waste, it had not established that it was "controlled" waste for the purposes of section 33 of the Act.

The Crown Court agreed that the Environment Agency had failed to establish that the material was capable of being waste. In its view, notwithstanding that they had been paid to receive it, the material represented a valuable commodity to the farmers. Also, there was not the slightest suggestion that they would discard the material. It was put to use immediately upon its deposit.

The Crown Court also agreed that even if the material was waste, the Environment Agency had not established that it was "controlled" waste. There was, in short, no evidence adduced that would enable a jury to find that the soil and subsoil from the building site was controlled waste.

The Environment Agency appealed against the ruling that there was no case to answer to the Court of Appeal.

First, the Court of Appeal held that in a prosecution under section 33 of the Act, it is a matter for the judge to determine whether the material in issue is capable of being "controlled waste" within the meaning of the Act and that, if so, it is then for the jury to decide whether it is in fact "controlled waste".

Was the Crown Court wrong to decide that this material was not capable of being controlled waste? The Court of Appeal considered a number of cases on waste, including the recent OSS and Inglenorth decisions and the Northern Ireland case of Department of the Environment and Heritage Service v Felix O'Hare.

It concluded that:

• Excavated soil which has to be discarded by the then "holder" is capable of being waste within the Act and, in any individual case, ordinarily will be.
• Having become waste it remains waste unless something happens to alter that. Whether such an event has happened is a question of fact for the jury.
• The possibility of re-use at some indefinite future time does not alter a material's status as waste. Actual re-use may do so, but only if consistent with the aims and objectives of the Act and of the EC Waste Framework Directive, the principal ones of which are the avoidance of harm to persons or to the environment, as set out in the recitals to the Directive. Which of those aims and objectives are relevant to an individual case will depend on the cases presented by the parties.

It found that the Crown Court was wrong to find that the soil and subsoil was not capable of being waste. The Crown Court's key errors were:

• approaching the assessment of whether the material was waste entirely by reference to the farmers as "holders"; and
• placing too much emphasis on the intention of the farmers to put the material to immediate use.

The Court of Appeal also thought that the Crown Court was wrong to find that there was no evidence that (if it was waste at all) the material deposited was "controlled" waste. In its view, there was ample evidence.

The Court of Appeal therefore allowed the appeal and held that there was a case for the farmers to answer. The case was sent back to the Crown Court for re-trial.

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