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R (Tarmac Aggregates Ltd) v Secretary of State for Environment, Food and Rural Affairs [2016] Env. L.R. 15

DATE: 17 Nov 2015

This case concerned the distinction between ‘waste recovery’ and ‘waste disposal’ in the Waste Framework Directive 2008/98/EC.

The Appellant had applied for a permit from the EA for the backfilling of Methley Quarry near Leeds to enable it to restore the quarry pursuant to a condition on the planning permission governing the site, which required the implementation of a land restoration scheme that had been approved by Leeds City Council. The proposal was to undertake the restoration scheme using waste materials. The EA refused to grant a waste recovery permit, and 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 for which there would be a considerable financial incentive.

The Appellant’s judicial review challenge to the refusal by the Secretary of State’s Inspector of its appeal was dismissed by Patterson J. in the High Court. Appealing to the Court of Appeal, its first argument was tha since the restoration scheme made a more than de minimis contribution to ecological improvement, it necessarily fell within Waste Recovery Category R10 “Land treatment resulting in benefit to agriculture or ecological improvement” under Annex II of the Waste Framework Directive and therefore should be deemed recovery. The Court of Appeal (Macfarlane, Floyd and Sales LJJ) rejected that argument, holding that since the proposed operations could also be characterised as falling within Waste Disposal Category D1 “Deposit into or on to land (e.g. landfill, etc.)” in Annex I of the Directive, “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.” (see para. 38 of the judgment of Sales LJ).

The Appellant’s next argument was that it was not necessary to show that non-waste materials would otherwise be used for the proposed operations in the event that waste could not be used. The Court left open that question, since it was not necessary to determine the appeal, but held that the CJEU case-law supported the position of the Secretary of State and EA that such substitution did indeed have to be shown (see para. 44 of the judgment of Sales LJ).

The Appellant also argued that the Inspector had acted inconsistently with the Secretary of State’s approach to the interpretation of the Waste Framework Directive in recently granting an environmental permit for the Wallasea Island habitat restoration scheme. The Court dismissed that argument, holding that if the Wallasea Island decision was based upon a misinterpretation of law, it did not in any way bind the Secretary of State or the EA in their subsequent decision-making (see paras. 45-46 of the judgment of Sales LJ).

Despite these conclusions on the law in favour of the Secretary of State and the Environment Agency, on the facts of the case the Court concluded that the Inspector had acted irrationally in concluding that non-waste materials would not have been used if waste could not be used, since there was no evidence to support that view and significant evidence to support the view that (i) the Council would have insisted on the restoration condition being discharged and (ii) it was viable, albeit less profitable, for the Appellant to do so using non-waste materials (see paras. 39-42 of the judgment of Sales LJ). On this basis the Court allowed the appeal.

Charles Banner appeared as sole counsel for the Environment Agency, whose submissions on the law were accepted by the Court.