Lafarge Aggregates Ltd, R (On the Application Of) v Secretary of State for Environment, Food And Rural Affairs

Whether an operation is waste recovery depends on the statutory substitution test in article 3(15) of the Waste Framework Directive. The court must consider whether waste will serve a useful purpose by replacing materials that would otherwise have been used for the relevant function. That requires a fact-sensitive assessment, including the realistic alternatives if waste cannot be used. Planning permission is relevant but does not determine the issue under the environmental permitting regime. Annex II provides a non-exhaustive list of recovery operations; an operation is not within R10 merely because it produces ecological improvement. The applicant bears the burden of showing, on the balance of probabilities, that the proposed activity is recovery.

The claimant challenged an inspector’s dismissal of its appeal against refusal of a standard rules environmental permit for depositing inert waste at Methley Quarry. The proposed works would restore a public footpath and create ecological benefits as part of quarry restoration. The inspector concluded that the operation was construction but did not satisfy the article 3(15) recovery test because, if waste could not be used, alternative restoration arrangements were more likely than backfilling with non-waste material. The claim raised eleven grounds, principally concerning the interpretation and application of article 3(15), the planning permission, alternative schemes, the Wallasea Island decision, rationality and reasons.

1. The claim was dismissed. The inspector had applied the correct legal test under article 3(15) of the Waste Framework Directive. The essential question was whether the waste would serve a useful purpose by replacing other materials that would otherwise have been used for the function.
2. Annex II contains a non-exhaustive list of recovery operations. R10 requires both land treatment and resulting ecological improvement. Ecological improvement alone was insufficient, and it was not clear that the proposed deposit fell within R10. Classification therefore depended on the article 3(15) test and the facts of the individual case.
3. The relevant counterfactual was whether, if waste were unavailable, the operation would still be carried out using non-waste material. If the operation would not occur, or would occur in a materially different form, the waste would not be substituting for material that would otherwise have been used. Considering realistic alternatives was consistent with the reasoning in Abfall Service AG v Bundesminister für Umwelt, Jugend und Familie.
4. The planning permission and its restoration condition were relevant starting points, but they were not determinative under the separate environmental permitting regime. The inspector was entitled to consider a possible variation of the planning permission and alternatives including a bridge, permanent diversion, or other restoration design.
5. The claimant bore the burden of demonstrating, on the balance of probabilities, that the proposed activity was recovery. Whether that burden was discharged was an evaluative judgment. The inspector was entitled to assess the evidence concerning costs, commercial realities and alternative restoration schemes and to conclude that non-waste backfilling was unlikely.
6. The inspector adequately distinguished the Wallasea Island decision by reference to the nature and scale of the works and by applying article 3(15) to the present scheme on its own facts. Regulatory guidance EPR 13 could not alter the statutory test. The decision was rational and adequately reasoned.

The judgment was a first-instance judicial review of an inspector’s decision dated 29 January 2015 dismissing the claimant’s appeal against refusal of an environmental permit. Permission to bring the claim was granted on 29 April 2015.