Waste materials appropriate in order to create wetland landscape in quarry

The quarry operator had secured planning permission for quarrying aggregates including a phased extension of its operations. Various conditions required the landscaping of the site on completion. The company had argued that the use of waste from its quarrying operations would be cheaper and less onerous than complying with a permit to dispose of waste on the land. The EA however refused to issue a ‘standard rules environmental permit’ which would enable the operator to use spoil and waste from its quarrying operations to create an area of environmental interest comprised of two wetland areas divided by a footpath. The EA concluded that using waste for backfilling the site was not a ‘waste recovery’ operation for the purposes of EU Directive 2008/98 and consequently it refused to issue a permit. At appeal the inspector agreed with this approach, concluding that the operator required a waste disposal permit instead.

Article 3(15) of the EU directive defined ‘recovery’ as any operation whose principle result was "waste serving a useful purpose by replacing other materials which would otherwise have been used to fulfil a particular function, or waste being prepared to fulfil that function…" the court noted. In Abfall Service AG (ASA) v Bundesminster fur Umwelt, Jugend und Familie [2002] the European Court of Justice (ECJ) held that the decisive question was whether waste was being used for a genuine purpose and the essential characteristic was that it was replacing other materials which would otherwise have been used for that operation.

The Court of Appeal held that the Inspector had been wrong in his assessment. He should have found that the backfill operations to create the wetland areas was a legitimate function which would have to be undertaken whether waste was used or not in accordance with the ruling of the ECJ. The local planning authority would have sought compliance whatever the materials used and the inspector’s conclusion that such compliance might not occur was irrational. Creating the wetland would require a substantial amount of materials and if waste was not used than non-waste materials would have to be employed. By using waste materials as proposed by the quarry operator, this accorded with the definition of ‘recovery’ in Article 3(15). The court held in accordance with Abfall that the primary objective of using waste was its recovery in an operation which would have to be undertaken in any event. The inspector’s decision was quashed and the court ordered the EA to issue a standard rules environmental permit to allow spoil and waste from the quarry to be used in the restoration works.

Tarmac Aggregates Ltd v Secretary of State for Environment, Food and Rural Affairs

Date: 17 November 2015.