UK: Waste Law - Case Update

Last Updated: 17 October 2007
Article by Paul Bratt and Rhian Gilligan
R (ON THE APPLICATION OF) ANTI-WASTE LIMITED V ENVIRONMENT AGENCY (THE "AGENCY") [2007] EWHC 717 (ADMIN)

Background

The shortage of suitable waste disposal sites has driven applications for permits allowing waste businesses to use the more space efficient ‘piggyback" landfill development. The Agency has traditionally rejected such requests. However, the ruling of the Queens Bench Division in this Judicial Review application has called into question this blanket approach.

The Facts

Anti-Waste Limited ("AW") applied to the Agency for a permit to deposit waste at two sites where the waste would overlap waste that had already been deposited and was contained in an existing closed cell, a technique known as "piggybacking". The Agency rejected the application on the basis that piggybacking was not permitted under the Integrated Pollution Prevention and Control Directive (1996/61/EC), the Landfill Directive (1999/31/EC), the Groundwater Directive (80/68/EC) and other domestic legislation. AW sought to challenge that decision, in the process seeking declarations from the Court in relation to the following issues:

Whether a permit could be granted for the separate operation of a landfill that partially overlapped a closed cell which contained previously deposited waste (the "Installation Issue").

Where a permit related to the whole site, encompassing both the new proposed landfill and the old closed cells, was the Agency required to refuse to grant a permit where the deposits in the closed cell were responsible for harmful discharges to the groundwater and where the landfill as a whole could not be made to comply with the technical requirements of the Landfill Directive (the "Groundwater Issue")?

AW accepted that there would be some difficulties in relation to the pollutants in the existing cells, but argued that a permit should be granted if those technical problems could be overcome. It proposed that, for each site, an angular liner would be used to separate the existing cells from the new waste and that this liner would be strong enough to prevent the new waste leaching into the old cells. The effect of this would be to make the old cells independent of the new.

The Decision

The Court held that it was permissible for a permit to be granted in situations where piggybacking was proposed so long as there was no interdependence between the old and new cells. However, it placed the following strict conditions on the grant of such permits:

The Installation Issue – a permit could not be granted where there was any serious risk that, as a result of the new deposits, pollution could be caused by the old cells. Further, there was to be no interference with the ability to control pollution from the old cell such that there was a risk of serious pollution. The Court noted that a permit would have to be refused where any barriers created would not last long enough to deal with aftercare requirements.

The Groundwater Issue – this did not fall to be determined following the ruling in respect of the Installation Issue. However, if the installation was considered to include an existing closed cell, the Groundwater Regulations 1998 would prevent the granting of authorisation where there were any discharges (whether or not caused by new deposits) as this would lead to pollution in the future.

This decision is to be appealed later this year and is unlikely to result in the Agency readily granting piggyback permits, particularly in light of the Court’s clear message that there must be no risk of pollution. However, the clarification of the law is welcome, particularly for those waste companies seeking to increasingly use the piggyback technique to overcome the shortage of landfill space.

Subject to the outcome of the appeal, piggybacking may become more commonplace where discharges from both old and new deposits are compliant with the Groundwater Regulations.

R (OSS GROUP LIMITED) ("OSS") V ENVIRONMENT AGENCY (THE "AGENCY") [2007] EWCA CIV 611

When does "waste" cease to be "waste"? That was the question put before the Court of Appeal in June by OSS. OSS collected waste lubricating and fuel oil from garages and workshops, before converting it into marketable fuel oil. OSS sold its products on the basis that they had ceased to be waste as a result of a particular recovery process and was thus "clean fuel oil", allowing its customers to avoid the costly and bureaucratic regulatory regime provided for in the Waste Framework Directive (the "Directive").

The Law

The Directive defines "waste" as, "any substance in the categories set out in Annex I which the holder discards or intends... to discard". The holder of the waste can be either the producer, including those who change the nature or composition of the waste, or the person in possession of it, in this case, OSS’s customers. There has been a raft of increasingly complex European case law considering the interpretation of the Directive.

Pursuant to the Directive, operations consituting "disposal" and "recovery" of waste may include burning or "incineration" depending on whether its "principal" purpose is to generate energy.

Underpinning the Directive is the requirement upon Member States to take "appropriate measures" to encourage "the prevention or reduction of waste production and its harmfulness" and "the recovery of waste by means of recycling, re-use or reclamation, or any other process with a view to extracting secondary raw materials or the use of waste as a source of energy".

The Arguments

The Court of Appeal was asked to consider whether a lubricating oil, not originally used as fuel but for lubrication, which later became waste could thereafter be burnt as non-waste ie, did the material cease to be waste because of:

  • OSS’s treatment process prior to combustion as a fuel; or
  • the actual combustion itself?

OSS argued for the former interpretation, the Agency for the latter.

In making its submissions, OSS put two simple questions to the Court of Appeal:-

  • Is the material sufficiently analogous to a virgin product/raw material genuinely to replace it?
  • Is the material analogous to such a raw material in terms of environmental risks in use?

The Decision

Having reviewed relevant domestic and European case law, the Court of Appeal decided in favour of the position advanced by OSS. It considered that the Agency’s view was too narrow and overly prescriptive finding that the correct formulation was that a lubricating oil which was not originally used as fuel, and which became waste, could thereafter be burnt as a non-waste. Therefore, OSS’s treatment processes in the manufacture of the "clean" fuel oil was not subject to the regime outlined in the Directive.

The Court commented that "a search for logical coherence in the Luxembourg case law is probably doomed to failure", finding a fundamental problem in the European Court of Justice’s ("ECJ") formulaic adherence to the Directive definition of waste, "even where it can be of no practical relevance".

Whilst the subjective "intention to discard" might be a useful guide to the status of material in the hands of the original producer, it was less helpful in determining the status of material in the hands of someone who bought it for recycling or reprocessing or put it to some other valuable use. In no ordinary sense was such a person discarding or getting rid of the material. His intention was precisely the opposite.

The Court of Appeal indicated that a practical common sense approach was required which was consistent with the letter and spirit of the Directive. It should therefore be enough that the holder had converted the waste material into a distinct, marketable product that could be used in exactly the same way as an ordinary fuel and with no worse environmental effects.

Implications

This decision has considerable economic significance given the costs of complying with the higher standards required by the Directive’s regime. However, it does not provide a definitive test as the ECJ in similar cases has "consistently declined invitations to provide one".

The Court of Appeal did communicate its hope, "that in the light of this judgment, it may be possible for DEFRA and the [Agency] to join forces in providing practical guidance for those affected…It is important that the national authorities should use their expertise and experience to assist those concerned with treatment and handling of waste".

The Court of Appeal has begun the process of bringing much needed pragmatism to the definition of waste. The ingenuity of business has for years been several steps ahead of the law which has failed to keep pace with the growth in recovery, recycling and re-use. The present test is more flexible and keeps environmental protection at the forefront of the debate, a position from which it had been relegated by past ECJ decisions.

ENVIRONMENT AGENCY (THE "AGENCY") V BIFFA WASTE SERVICES LIMITED ("BIFFA") [2006] EWHC 3495 (ADMIN)

Background

The problem of objectively assessing odour emissions in an industrial context came before the High Court towards the end of 2006. Pursuant to the Pollution Prevention and Control (England and Wales) Regulations 2000, the Agency granted a conditional permit to Biffa in relation to the operation of a landfill site. One of the conditions was that no odours should be emitted from the site at levels that were likely to cause pollution of the environment, harm to human health or serious detriment to the amenity of the locality "as perceived by an authorised officer of the Agency."

Following several site visits, prompted by complaints from local residents about the "strong odour" being emitted from the site, the Agency prosecuted Biffa for failing to comply with the permit conditions. The case was dismissed by a District Judge because although the condition was unambiguous, the inclusion of the phrase, "as perceived by an authorised officer" was ultra vires on the basis it exceeded the object of the power to include conditions in permits, as well as usurping the function of the Court in determining guilt.

Appeal

The Agency appealed to the High Court, which was asked to consider whether the Judge was right to rule that the use of the disputed phrase was ultra vires on the basis that:

  • it offended the principles of certainty, clarity and forseeability, which were required by criminal law:
  • it had the effect of usurping the fact finding and adjudicative role of the courts by granting these functions to an authorised officer and obliging the court to convict whenever it was satisfied that the officer honestly perceived these facts: and
  • it resulted in a condition extending beyond the object of the power set out in regulation 8 of the Landfill (England and Wales) Regulations 2000, which provides for the conditions that may be included in a landfill permit.

The Decision of the High Court

In finding in favour of the Agency the Court held that:

  • The words "as perceived by an authorised officer" identified a requirement that the evidence of an Agency officer was a necessary ingredient of such cases. The clause also worked to provide a safeguard for operators against irresponsible prosecutions based solely on complaints by local residents.
  • The phrase did not limit the jurisdiction of the Court to decide, on the basis of all the evidence presented to it, whether odours had been emitted at levels that offended against the standards required. Accordingly, the words were consistent with the principles required by criminal law.
  • The power of the Court to form its own opinion on the evidence before it was not usurped. The Court was not bound to accept the officer’s evidence and could reject it where it considered such testimony to be unreliable. Whilst the fact-finding exercise was a difficult one for the Courts to undertake in the absence of objective, scientific means to assess the level of odours, it was one that the Court was entitled to and required to conduct.

The Court was at pains to set out in great detail the monitoring methodology set out in the permit. It did so to highlight both the extent of the duty incumbent upon operators to monitor the close working relationship anticipated between such operators and the Agency with a view to achieving environmental protection.

Clearly the subjective nature of such conditions can cause difficulties for operators. However, until objective criteria for measuring odour can be implemented, these types of conditions are likely to remain commonplace. Further, the decision of the Court in this case provides a clear outline as to how breaches of such conditions are to be enforced.

It is strongly recommended that where it is anticipated that an officer might identify an offensive odour, credible third party evidence is available to weigh against the officer’s finding.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.