Company operating rendering plant – Condensate produced in rendering process – Company spreading condensate on farmland – Company prosecuted – Judge finding no recycling or recovery operation – Condensate therefore not controlled waste – Company acquitted – Whether judge misdirecting himself as to requirements of controlled waste – Environmental Protection Act 1990 – Waste Management Licensing Regulations 1994
D, a company, operated a rendering plant. D received animal by-products in the form of slaughterhouse waste and offal, and used batch cookers to produce animal feed, tallow and doggy chews from the by-products. During the rendering process, a condensate was produced: this was nitrogenous and could cause water pollution. The condensate was collected and spread upon farmland owned by the director of D. No waste-management licence existed for the deposit of the condensate upon the farmland. Neither D nor any of the other parties involved were registered as waste carriers.
D was prosecuted for an offence under section 34(1)(a) of the Environmental Protection Act 1990, on the ground that D, being a producer of controlled waste, namely condensate/residue, failed to take all such measures applicable to it in that capacity to prevent any contravention of section 33 of the Act. The judge found that he had to analyse whether the condensate could properly be regarded as “controlled waste”. He relied upon Mayer Parry Recycling Ltd v Environment Agency [1999] Env LR 489, and concluded that: “after the condensate left the rendering premises, there was no question of recycling or a recovery operation, it was simply placed upon the land”. The judge held that the condensate was not “waste”, and, accordingly, acquitted D.
The Attorney-General made a reference under section 36 of the Criminal Justice Act 1972. The points of law that were referred to the court for its opinion were whether: (i) a substance may only be discarded, and thus become “controlled waste”, if it was consigned to a recovery or disposal operation falling within Parts 3 or 4 of Schedule 4 to the Waste Management Licensing Regulations 1994; (ii) the fact that a substance was placed upon land without first having been the subject of a recovery operation meant that it was not capable of being “controlled waste”; and (iii) the fact that a substance was capable of resulting in a benefit to agriculture when applied to land meant that it was not capable of being “controlled waste”.
Held: Recovery or disposal operations falling within Parts 3 or 4 of the 1994 Regulations were not required before a substance could be “controlled waste”. Upon the facts, the condensate was capable of being regarded as discarded, and, therefore, was capable of being “controlled waste”: R (on the application of Castle Cement Ltd) v Environment Agency [2001] EWHC Admin 224; (2001) 98(14) LSG 42 applied. The restrictive approach in Mayer Parry was not applicable. Each of the questions was to be answered in the negative.
John Howell QC (instructed by the solicitor to the Environment Agency) appeared for the Attorney-General; Jeremy Cahill and Satnam Choongh (instructed by Goodwin Cockerton & Colhoun, of Bakewell) appeared for D.
Sarah Addenbrooke, barrister
