W, C and C, R. v

Excavated soil which an original holder must get rid of is capable of being waste and ordinarily will be waste. Its intended or immediate re-use by a recipient does not automatically remove that character. The material remains waste unless its recovery or disposal is acceptable in light of the objectives of the Environmental Protection Act 1990 and the Waste Framework Directive, including protection of persons and the environment.

Whether that has occurred is generally a question of fact for the jury. Where there is evidence that waste came from agricultural premises or construction works, the jury may be entitled to find it was controlled waste.

The respondents owned and managed a farm on which substantial quantities of excavated soil and subsoil were deposited without a waste management licence. The Crown alleged offences of knowingly permitting the deposit of controlled waste and of keeping or disposing of it contrary to the Environmental Protection Act 1990.

At the close of the Crown’s case, the Crown Court accepted submissions that there was no case to answer. It held that the material was not capable of being waste once received for immediate use in creating farm hard standing, and that the evidence did not establish controlled waste.

The Crown obtained leave to appeal under the Criminal Justice Act 2003. The central issue was whether the evidence required the questions of waste and controlled waste to be left to the jury.

1. Appeal allowed. The judge wrongly accepted the submission of no case to answer. A fresh trial could take place under section 61(4)(b) of the Criminal Justice Act 2003.

2. In a prosecution under section 33 of the Environmental Protection Act 1990, the judge decides whether the material is capable of being controlled waste. If it is, the jury decides whether it was in fact controlled waste.

3. Excavated soil which the holder has to get rid of is capable of being waste and ordinarily will be. The court followed the approach in Department of the Environment and Heritage Service v Felix O’Hare [2007] NICA 45 and applied the Directive-based analysis in R (OSS Group Ltd) v Environment Agency [2007] EWCA Civ 611. Material which was waste when excavated remains waste until acceptable recovery or disposal has occurred.

4. Immediate intended use by a new holder is relevant but not conclusive. Environment Agency v Inglenorth Ltd [2009] EWHC 670 (Admin) was correct on its particular findings concerning valuable demolition material for immediate use, but it did not make immediate re-use decisive regardless of the material and environmental context. The jury had to decide whether the proposed platform was consistent with the Directive’s objectives, including protection of the environment and visual amenity.

5. There was evidence capable of establishing controlled waste. If the soil was waste, the jury could find that it was industrial waste from agricultural premises and/or construction or demolition waste under section 75 and the Controlled Waste Regulations 1992. The court also considered that, if the material was waste, the respondents bore the onus of showing that it was not controlled waste.

• Court of Appeal (Criminal Division): The Crown’s appeal under section 58 of the Criminal Justice Act 2003 was allowed: [2010] EWCA Crim 927. The court ordered that a fresh trial could take place.
• Crown Court: At the close of the Crown’s case, the trial judge accepted the respondents’ submissions of no case to answer on the issues of waste and controlled waste.