Court of Appeal
HELD: Given the findings of fact in Environment Agency v Inglenorth Ltd (2009) EWHC 670 (Admin), (2009) Env LR 33 and the nature of the materials involved, the material deposited in that case could properly be considered not to be waste within the meaning of the Act at the date of deposit. However, the question of immediate re-use of the relevant material could not be entirely determinative of its status regardless of other considerations, and the judge had erred in concentrating entirely on the intentions of P, T and W to put the material to immediate use, Department of the Environment and Heritage Service v Felix O'Hare & Co Ltd (2007) NICA 45, (2008) Env LR 28 applied and Inglenorth considered. Excavated soil which had to be discarded was capable of being waste and ordinarily would be. Having become waste, it remained waste until something happened to alter that. Whether such an event had happened was a question of fact for the jury. The possibility of re-use at some indefinite future time did not alter its status. Actual re-use might do so but only if consistent with the aims and objectives of the 1990 Act and Directive 2006/12, principally the avoidance of harm to persons or the environment. In the instant case, the Crown's main concern was for the environment around the village where the farm lay, as a Special Area of Conservation, and for visual amenity in the area generally. Those matters were readily capable of assessment by a jury in deciding whether any material in issue was in fact "waste". Accordingly, the judge had been in error in assessing the status of the materials entirely by reference to P, T and W as holders. It was open to the jury to find that the materials had been waste from the moment of excavation at the neighbouring farm, before P, T and W became holders. The additional question was whether the materials ceased to be waste because of the intended and actual use of them by P, T and W as the new holders, and that was also a question of fact for the jury. At the close of the Crown's case, there was undoubtedly evidence to go to the jury which would entitle it to find that the materials were waste that was required to be disposed of by the producers and the hauliers and that P, T and W had been paid to relieve that need on their part. If satisfied that the materials were waste at that stage, the further question that remained for the jury was whether, having regard to the aims of the Directive, they ceased to be waste. If there was a case to go to the jury on that point, there clearly was a case to answer that the materials were controlled waste, having regard to the definitions contained in s.75 of the Act. If the materials were waste, the onus of showing that it was not controlled was on P, T and W. For those reasons, the submission of no case to answer had been wrongly accepted.
(2010) Env LR 41 : Times, June 22, 2010
William Meade (Senior Clerk)