In Northern Ireland, any dealings with waste material are controlled by the Northern Ireland Environment Agency (NIEA) under management licences. Certain activities which ‘recover’ waste are exempt from licensing if they meet the requirements of Regulation 17 of the Waste Management Licensing Regulations (NI) 2003. A similar concept applies in England and Wales. In that jurisdiction if waste activities are seen as waste recovery, an exemption or ‘standard rules’ permit will be granted. However, if waste activities are found to simply dispose of waste, a special ‘bespoke rules’ permit will be granted which is more expensive and subject to heightened regulation.
This notion of waste recovery and the European Waste Framework Directive of 2008 was recently considered in an English case entitled R (on the application of Tarmac Aggregates Ltd) v Secretary of State for the Environment, Food and Rural Affairs . This case concerned waste activities at a quarry operation near Leeds. The facts of the case concerned a planning condition imposed by the local authority to restore a footpath which had been diverted during quarrying works. To this end, around 70,000 tonnes of material was required to ‘backfill’ certain parts of the land after excavation and the plaintiff company proposed using waste aggregate rather than using non-waste material. However, the Environment Agency (EA) and the appellate Inspector considered that this backfilling was a disposal of waste and would not grant a permit.
The Inspector felt that the plaintiff company should not be entitled to use waste backfill as it had the financial means to use non-waste material, despite the costs consideration to the plaintiff being greater. However, when the matter eventually reached the Court of Appeal after a Judicial Review had been dismissed, Lord Justice Sales considered, among other things, that ‘in the circumstances it was irrational’ for the Inspector to reach the conclusions that he did. The Appeal Judge found that by proposing to use waste aggregate instead of bringing in new primary materials, the need to use primary materials would be avoided and so the ‘operation ought properly to be classified as a recovery operation’.
This case highlights the importance of proper planning and consideration by those in agriculture, the waste industry, and operators of aggregate extraction, as to whether their waste disposal activities will be seen as recovery of waste instead of disposal. The extent to which the activity contributes to ecological improvement will be a major factor.
The licencing arrangements for dealing with waste in Northern Ireland can present complications for different companies, not least against the expanding edifice of European legislation on the matter, but also in the light of the fact that the licensing regulations do not sit entirely on all fours with England and Wales.
Worthingtons Solicitors are experts in interpreting this area of the law and advise frequently on a range of quarrying and construction matters.
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