Environment – Meaning of “waste” – Used electrical goods purchased for repair and resale – Appellant arguing waste-management licence required for storage of goods – Whether goods “waste” – Environmental Protection Act 1990 – Waste Framework Directive 75/442/EEC – Appeal dismissed
The respondent was in the business of acquiring used electrical goods for repair and resale. Consumers had returned the goods in question to retailers for exchange or upgrade; another company retrieved the items from the retailers and sorted those that were still functioning or could be repaired from those that were no longer serviceable. The latter were disposed of, while the former were sold to vetted customers in the refurbishment business, including the respondent. The respondent inspected the items on sale and selected those that were in working order or that would require little work to repair. It then and transported them to its own premises, where they were stored pending inspection, refurbishment and repair by its trained engineers. Once repaired, they were sold to the public.
The appellant took the view that the stored items were to be regarded as “waste” within the meaning of the Environmental Protection Act 1990 and Article 1 of the Waste Framework Directive 75/442/EEC, such that the respondent required a waste-management licence under the Waste Management Licensing Regulations 1994 in order to store them. In proceedings against the respondent for an offence of depositing and keeping controlled waste contrary to section 33 of the 1990 Act, the appellant contended that the items in question became waste once they were exchanged for new goods by the original consumer, who had “discarded” them within the meaning of the directive. It argued that that they did not cease to be waste by virtue of their selection and purchase by the respondent but remained so until they had been repaired by the engineers ready for resale and the process of recycling and recovery was complete. The justices found in favour of the respondent and held that the items were not waste. The appellant appealed.
Held: The appeal was dismissed.
The justices had been entitled to find that the items in question were not waste. Although in certain authorities it had been held that materials remained waste until the process of recovery had been completed, that was not a general principle and would depend upon the circumstances; those cases had been concerned with materials that were indisputably waste to begin with: ARCO Chemie Nederland v Minister van Volkshuisvesting [2002] QB 646 and OSS Group Ltd v Environment Agency [2007] EWCA Civ 611; [2007] JPL 1597 distinguished. The question of whether something was waste had to be determined in the light of all the circumstances having regard to the purposes of the directive, which included the protection of health and the environment and encouraging the recovery of waste. It was debateable whether an item could be said to be “discarded” within the meaning of the directive where the consumer exchanged it for a new one; there was nothing to say that such items were no longer required for their original purpose. Although the items were unwanted, they would often be as good as new. To find that they automatically became waste as a matter of law when the consumer let them go was to apply too stringent a test. The directive did not require such a finding.
Moreover, even if the items had been waste in the hands of the consumer, the justices had been entitled to find that they were not waste by the time they came into the possession and control of the respondent. By then, they had been through two selection processes; first by the company from which the respondent acquired them, and then by the respondent to identify those that were suitable for purchase. The form of the goods had not changed, and they contained no hazardous materials. None of the purposes of the directive would be met by treating such items as waste. The justices had applied the purposes of the directive to the facts of the case.
Sailesh Mehta (instructed by the legal department of the Environment Agency) appeared for the appellant; Timothy Green (instructed by Challinors, of Birmingham) appeared for the respondent.
Sally Dobson, barrister