Environment Agency v Thorn International UK Ltd

Whether an object is “waste” depends on whether its holder has discarded, or intends or is required to discard, it. A consumer’s decision to exchange an appliance for a newer product does not automatically mean that the appliance has been discarded.

Where goods were selected for reuse after independent inspection, retained for their original purpose and stored without environmental risk, a court may conclude that they are not waste while awaiting repair or refurbishment. The rule that undoubtedly discarded material remains waste until recovery is complete does not make every repairable or refurbishable item waste. The assessment is fact-sensitive and must take account of the Directive’s protective purposes and all the circumstances.

Thorn International bought used refrigerators, computers and other electrical goods from Wincanton for repair, refurbishment and resale. Wincanton had selected those goods from appliances collected by retailers, rejecting approximately 80 per cent as unusable. Thorn carried out a further selection and sent the goods for inspection and repair. Goods unsuitable for resale were sent to licensed waste carriers.

Justices sitting for West Bromwich found that the goods stored by Thorn had not been discarded and were not controlled waste. The Environment Agency appealed by way of case stated. The central questions were whether the goods became waste when consumers exchanged them for replacement products and whether they remained waste until repair or refurbishment was complete.

1. Appeal dismissed. The justices were entitled to conclude that the goods held by Thorn were not waste. The first question concerning hazardous materials was answered in the affirmative, and the second question concerning the goods’ status while awaiting repair was also answered in the affirmative.
2. Under Article 1(a) of the Waste Framework Directive, the question is whether the holder discarded, intended to discard or was required to discard the object. “Discard” has a broad meaning equivalent to getting rid of, informed by the categories in Annex I and the Directive’s purposes. The court applied the approach in Inter-Environnement Wallonie ASBL v Region Wallonne [1997] ECR I-7411.
3. The court distinguished the authorities concerning material which was undoubtedly waste. In ARCO Chemie Nederland Limited and Elektriciteitsproductiemaatschappij Oost-en Noord-Nederland NV (Epon), and in R (OSS Group Limited) v the Environment Agency and others and DEFRA [2007] EWCA Civ 611, the issue was when waste ceased to be waste during recovery. In that situation, the relevant question concerns whether the cycle of repair or restoration is complete and must be assessed in all the circumstances.
4. Those authorities did not establish that every item requiring repair or refurbishment is waste until the process is finished. Nor was the court bound to hold that an appliance became waste merely because a consumer no longer wished to retain it after arranging an exchange. The goods had been selected twice for reuse, remained intended for their original purpose, had not changed form and presented no hazard while awaiting repair.
5. The justices had applied the Directive purposively to the facts rather than laying down a general rule. Their conclusion was open to them.

• West Bromwich justices: On 15 May 2008, found that the goods were not waste and stated questions concerning that conclusion.
• High Court (Administrative Court): The Environment Agency’s appeal by way of case stated was dismissed. The justices’ answers were upheld.