Environment Agency v Inglenorth Ltd

The classification of material as waste depends on all the circumstances, viewed in light of the objectives of the Waste Framework Directive. The holder’s intention is highly relevant, but the fact that material has been deposited or treated by a listed disposal or recovery method is not conclusive. A clear intention to reuse material may show that it has not been discarded. The critical distinction is between depositing material for storage pending reuse and depositing it for use more or less immediately without sensible storage. In a criminal case concerning delivery, the court must assess the material’s status when delivered and the recipient’s then intention, rather than automatically carrying forward any earlier status at the source site.

The Environment Agency appealed by case stated against the acquittal of Inglenorth Limited by the Stockport Justices on two informations under the Environmental Protection Act 1990. The charges concerned the delivery and deposit of demolition material at a garden centre without a waste management licence, contrary to sections 33 and 34.

The Justices found that the material was intended for use as hardcore in making up a car park, that the intention was clearly formed and communicated, and that the material was a valuable commodity intended for immediate reuse. They concluded that it was not waste when deposited. The central issues were the correct legal test and whether those findings supported the acquittal.

The appeal was dismissed. The court held as follows:

1. The Justices’ summary of the law was correct. Whether material is waste must be determined in all the circumstances, having regard to the aims of the Waste Framework Directive and the need for a high level of environmental protection. The ordinary meaning of discard remains relevant, although the concept of waste is not to be interpreted restrictively.
2. The methods of disposal or recovery listed in the Directive are indicators only. Deposit, storage or treatment by such a method does not necessarily establish that the material is waste. Likewise, economic value, commercial use and intended reuse are relevant but not individually decisive.
3. The stricter approach concerning by-products in Palin Granit Oy concerned material arising from a manufacturing or extraction process whose primary aim was to produce another item. The present case concerned demolition material and no production process or by-product. The case therefore did not govern the issue in the same way.
4. The relevant distinction was between depositing material for storage pending proposed reuse and depositing it for use more or less immediately without sensible storage. Immediate use could not be construed literally. Short delays caused by weather, delivery of other material or the arrival of machinery would not necessarily prevent reuse from being immediate.
5. The charges related only to what the company and Mr Campbell did, knew and intended on delivery to the Cheadle site. The material’s possible status at the Standish demolition site was not determinative. On the Justices’ findings, Mr Evans had no intention of discarding it, intended to use it as hardcore, and had communicated that intention to Mr Campbell. The material was therefore not waste when delivered and deposited at Cheadle.
6. The court declined to answer the wider question whether excavation or demolition materials are necessarily controlled waste when generated, since that issue did not arise for decision. Certification of a point of law for further appeal was refused because the case turned almost exclusively on findings of fact.

The judgment was a first-instance decision of the Divisional Court on a case stated by the Stockport Justices. The Justices had acquitted Inglenorth Limited on 28 November 2007. The Divisional Court upheld the acquittal and dismissed the Environment Agency’s appeal. Certification for a further appeal was refused.