Tarmac Aggregates Ltd, R (on the application of) v The Secretary of State for Environment, Food and Rural Affairs & Anor

For waste used in an operation that could fall within either a disposal or recovery category, classification depends on the operation’s principal objective. It is insufficient that the waste makes some ecological contribution. The question is whether the waste serves a genuine useful purpose by replacing other materials that would otherwise have been used for a function which would occur in any event. A continuing planning obligation remained significant despite the cost of using primary materials. The use of waste consequently constituted recovery under Article 3(15) of the Waste Framework Directive and fell within R10.

Tarmac appealed against the dismissal by Patterson J of its application for judicial review. The challenge concerned an Inspector’s dismissal of Tarmac’s appeal against the Environment Agency’s refusal to grant a standard rules environmental permit.

Tarmac proposed using inert quarrying waste to restore Methley Quarry in accordance with a planning condition. The Inspector accepted that the material was suitable and that primary material would be financially viable, but considered it likely that alternative restoration schemes might be pursued if primary material had to be used.

The central issue was whether the proposed backfill was a recovery operation under Article 3(15) of the Waste Framework Directive, particularly R10 in Annex II, or a disposal operation.

1. Appeal allowed. The Inspector’s decision was quashed and replaced by a determination that the Environment Agency should issue a standard rules environmental permit for the relevant waste used in the Quarry restoration.
2. Where an operation could be characterised under either D1 in Annex I or R10 in Annex II of the Waste Framework Directive, classification depended on its principal objective. The operation was recovery only if the waste served a genuine useful purpose by replacing other materials which would otherwise have fulfilled that function. A merely incidental contribution to ecological improvement was insufficient.
3. On the Inspector’s findings, the restoration required by the planning condition was a legitimate function that had to be carried out whether waste or primary material was used. The use of waste would therefore replace primary materials otherwise required for the lakes, reed-beds, shallow water areas and land bridge. The principal objective was recovery of the waste through that substitution, so the operation properly fell within R10.
4. The Inspector’s reliance on possible redesign, a permanent diversion of the footpath or a modified landform was irrational. Those possibilities were speculative and unsupported by evidence. The fact that primary material was more expensive did not release Tarmac from its continuing planning obligation.
5. The court reserved its opinion on whether, under the now applicable Directive, waste could constitute recovery where the relevant works would not have been carried out using primary materials. It also stated that consistency with the separate Wallasea decision could not authorise a permit for an operation which was legally disposal rather than recovery.

1. Court of Appeal (Civil Division) [2015] EWCA Civ 1149: permission to appeal was granted at the rolled-up hearing; the appeal was allowed, the Inspector’s decision was quashed, and the decision was replaced with a determination that the Environment Agency should issue a standard rules environmental permit.
2. High Court of Justice, Queen’s Bench Division, Planning Court: Patterson J dismissed Tarmac’s application for judicial review of the Inspector’s decision.
3. Inspector appointed by the Secretary of State: the appeal against the Environment Agency’s refusal of a standard rules environmental permit was dismissed.