Environment – Waste recovery – Permit – Appellant proposing to carry out landscaping works at quarry site to comply with restoration condition in planning permission – Appellant applying for permit to use spoil from quarrying operations and other similar waste as backfill material to use in the landscaping – Permit refused – Article 3(15) of Directive 2008/98/EC – Whether backfilling operations involving recovery of waste within meaning of article 3(15) – Appeal allowed
The appellant operated a quarry at Methley, Leeds. In order to comply with a planning condition attached to its use of the site, it proposed to carry out restoration works by remodelling the landscape of the site to create two areas of wetland divided by an embankment or land bridge, with a footpath restored to its original position along the top to provide reasonable access to the public. The wetland so created was to be used partly for angling and partly as a mix of reed-bed and shallow open water for nature conservation. The appellant applied to the Environment Agency (EA) for a standard-rules environmental permit allowing it to use inert waste, namely spoil from its quarrying operations and other similar waste, as the backfill material, so avoiding the cost of using primary, non-waste material. Its application was based on the premise that such use of the waste would involve the “recovery” of waste within Article 3(15) of Directive 2008/98/EC (the Waste Framework Directive).
Rejecting the application, the interested party took the view that the operations involved the disposal of waste for the purposes of the directive, rather than its recovery. That decision was upheld on an appeal to a planning inspector, who identified the central question as whether the reinstatement of the excavated section of the footpath would be likely to occur even if waste were not used. He found that, in light of the cost of using non-waste materials for that purpose, alternative approaches would probably considered in those circumstances, possibly including the use of a footbridge or permanent diversion of the footpath. He accordingly concluded that the use of waste for the restoration works would not be an act of “recovery”.
The appellant’s claim for judicial review of the inspector’s decision was dismissed in the court below: see [23015] EWHC 2388 (Admin). The appellant appealed.
Held: The appeal was allowed.
The inspector had erred in his assessment of the proper classification of the backfill operations in the specific factual context of the case. On the evidence before him, and on the findings which he made, the inspector should have found that the backfill operation to create the lakes and the land bridge at the quarry site was a legitimate function which would have had to be carried out in any event. All the evidence indicated that the local planning authority would require the appellant to comply with its planning obligation to restore the quarry site, whether waste was used for that purpose or not. The local planning authority had never suggested that they might be willing to compromise the public interest which they had identified and required to be protected through the restoration condition by agreeing instead to permanent diversion of the footpath. The inspector’s view on that matter was pure speculation, unsupported by any evidence. In those circumstances, it was irrational for the inspector to reach any other conclusion than that the appellant would be required to comply with the planning obligation which it had assumed by accepting the restoration condition. It was therefore obvious that substantial quantities of material would have to be used to construct the lakes, the reed-beds, the shallow water areas and the land bridge, and that, if waste material were not used for that purpose, then primary materials would have to be used. It followed that the use of waste material for the function in question would involve replacing other materials which would otherwise have been used to fulfil that function, within the definition of “recovery” in article 3(15) of the Waste Framework Directive.
The primary objective in using waste to construct the lakes, the reed-beds, the shallow water areas and the land bridge was the recovery of the waste, in the sense of replacing the use of primary materials in an operation which would have to be carried out for the purpose of ecological improvement of the quarry site in any event, thus avoiding the need to use primary materials for that purpose as would otherwise have been the case. Accordingly, the backfill operation should properly to be classified as a “recovery operation” within para R10 of Annex II to the directive, namely a “Land treatment resulting in benefit to agriculture or ecological improvement”: Abfall Services AG v Bundesminister für Umwelt Jugund und Familie Case C-6/00 [2002] ECR I-1961 and Commission v Luxembourg Case C-458/00 [2003] ECR I-1553 applied.
Gregory Jones QC and Charles Streeten (instructed by Freeths LLP, of Leicester) appeared for the appellant; Alan Bates (instructed by the Government Legal Department) appeared for the respondent; Charles Banner (instructed by the Environment Agency) appeared for the interested party.
Sally Dobson, barrister
