Simon Trahair-Davies, partner at Stephens Scown LLP, looks at an interesting and unusual case that reached the English High Court recently.
Any mine or quarry operator knows that an issue always requiring careful planning and attention is what will happen to the site when the operation ceases?
No operator can simply leave an abandoned quarry or pit as a blot on the landscape. The restoration of the site, so that it meets safety and aesthetic standards, is simply one of the obligations of being in the business.
The issue of restoration can give rise to some interesting legal cases, as was evidenced this summer in an English High Court ruling over a dispute between
The case was a nuanced one because it was not so much about the standard or aesthetics of the restoration, but whether the use of waste materials to fill in the land amounted to waste disposal or waste recovery.
If you’re wondering why this matters, in this specific case it mattered because waste recovery in the UK requires only a standard environmental permit while waste disposal requires a more onerous bespoke permit. Bespoke permits are more restrictive and more expensive to obtain, hold and regulate. More generally, it is of interest because it looks at the European Union law question of what is waste recovery and what is disposal.
The site was a quarry near the city of Leeds, northern England. Lafarge needed to temporarily divert a footpath while quarrying was carried out, and committed to restoring the footpath (albeit at a level raised by eight metres) between two water bodies that had been created.
The filling in of the land in order to support the footpath required some 70,000tonnes of materials. Lafarge proposed to use waste materials for the purpose.
However, an inspector appointed to review the decision to require a bespoke permit deemed that using waste for this purpose amounted to waste disposal rather than recovery.
Lafarge appealed the decision and eventually the case came before the High Court in August of this year. The Court upheld the inspector’s ruling and refused Lafarge’s appeal.
So, what is the difference between waste disposal and waste recovery?
The key piece of legislation here is the Waste Framework Directive 2008, article 3 of which defines waste recovery as: “any operation the principal result of which is 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, in the plant or in the wider economy. Annex II sets out a non-exhaustive list of recovery operations.”
In other words, waste recovery is where the use of waste prevents other materials from needing to be used, so it serves an environmental purpose if you like, by effectively conserving resources.
Article 3 defines waste disposal meanwhile as: “any operation which is not recovery, even where the operation has as a secondary consequence the reclamation of substances or energy. Annex I to the WFD 2008 sets out a non-exhaustive list of disposal operations.”
An illuminating piece of guidance offered to Lafarge earlier in the process said: “Recovery operations which result in waste being used in place of primary resources are to be encouraged over disposal operations which are intended simply to get rid of the waste safely.”
But how can one know whether the true purpose of using waste is for a genuine recovery operation or simply to dispose of it? One of the important factors here is that there should be a benefit from using the waste, and that the amount of waste used should be in proportion to that benefit. As guidance issued to Lafarge put it:“…the benefit should be in proportion to the amount of waste deposited. If a large quantity of waste is required for a small benefit then this indicates a disposal activity. The reinstating of a footpath that has been removed is not in itself considered a benefit.”
Another key factor in determining whether an operation is an act of recovery is that it would otherwise have been carried out with primary materials if waste had not been available to be used. But, due to the volume needed to fill in the footpath, the inspector deemed it highly unlikely that Lafarge would have considered filling it in with primary materials due to the high costs that would be involved, even though that was what the existing planning permission essentially obliged it to do.
It was said: “At the heart of this case is whether the reinstatement of the excavated section of the footpath would be likely to occur if waste were not to be used….Both the scale of the landform, and the resulting cost of using non-waste materials, would make it likely that alternative approaches would be considered.” Unfortunately for Lafarge, their efforts were fruitless.
For other operators meanwhile, it underlines the importance of understanding whether their restoration activities that involve waste material are likely to be recovery or disposal.
Simon Trahair-Davies is a partner in the mining and minerals team at Stephens Scown LLP in the UK. The firm has more than 70 years’ experience representing mining and minerals clients and its specialist team has recently been recognised once again by independent guides to the law Legal 500 and Chambers.
Simon can be contacted on +44 (0)1872 265100 or email [email protected].
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