An inspector has upheld an enforcement notice directed at the deposit of builders’ and civil engineers’ waste materials on a field in Derbyshire (DCS Number 400-035-332), despite the appellant’s rather ingenious defence that the materials were not, in fact, waste.
The appellant argued that the materials were recycled soils, necessary for the purposes of agriculture. Accordingly, the inspector considered the meaning of ‘waste’.
The inspector recorded that the definition of waste set out in Art. 1(a) of the Waste Framework Directive – Directive 2006/12/EC is: “…any substance or object in the categories set out in Annex 1 which the holder discards or intends or is required to discard.” He also related that in OSS Group Ltd, Regina (on the Application of) v Environment Agency and others , it was held that once lubricating oil had been processed into fuel oil suitable for burning, it ceased to be waste so as to require it to be handled and stored as waste.
The judge in OSS Group Ltd considered the meaning of the term ‘discards or intends … to discard’. The use of the subjective test, the judge reasoned, while useful when examining the product in the hands of the ‘producer’ of waste, might not be apt to define the status of the material in the hands of a subsequent holder of the material for recycling or re-processing. He expressed the ‘general concept’ of the discard of waste as getting rid of something which is unsuitable, unwanted or surplus to requirements. He summarised European case law: “Understandably, the court has held that a material does not cease to be waste merely because it has come into the hands of someone who intends to put it to a new use. But that should not be because it still meets the Art.1(a) definition in his hands; but rather because, in accordance with the aims of the Directive, material which was originally waste needs to continue to be so treated until acceptable recovery or disposal has been achieved.”.
The inspector noted that a council site inspection had shown that a large amount of material had been imported onto the land. The officers concluded that those materials were soil-based but contained non-soil items such as brick, stone, concrete, tarmacadam, wood and plastic. They said it did not have the appearance of material that had been through a treatment process, rather, it was consistent with construction and demolition waste.
The inspector agreed that it was hard to accept that deposited materials that contained large blocks of concrete, road tarmac, plastics and timber had received any significant screening before deposition. He decided that the enforcement notice’s allegation that waste materials had been imported and deposited on the land was correct, and was a breach of planning control.