Protreat Ltd, R (On the Application Of) v The Environment Agency

The Waste Directive does not impose an absolute duty on a regulator to apply the waste hierarchy in descending order in every case. Articles 4 and 21 require a flexible, contextual assessment directed to the best overall environmental outcome and consistent with the Directive’s wider aims, including protection of human health and the environment.

Nor do Articles 4, 6 or 21 impose a specific duty to publish end-of-waste guidance. Article 6(4) permits case-by-case decisions where Community-level criteria have not been set, but does not require general guidance. Any obligation to issue guidance must arise, if at all, from the particular circumstances. No such obligation arose here, under the Directive or domestic law.

Protreat Limited sought judicial review of the Environment Agency’s response to an end-of-waste submission concerning products made by re-refining waste lubricating oil. The challenge concerned the Agency’s rejection of the submission, the closure of its Definition of Waste Panel, the limited extension of Regulatory Position Statement 185, and the alleged failure to provide binding guidance.

The claimant argued that re-refining, as recycling, occupied a higher position in the Waste Directive hierarchy than reprocessing for energy recovery, and that the Agency was therefore required to promote it through guidance and resource allocation. It also alleged unequal treatment and irrational or arbitrary time limits. The court considered the scope of the Agency’s obligations under Articles 4, 6, 13 and 21 of the Directive.

1. Claim dismissed. Each ground of challenge failed.
2. The Environment Agency, as an emanation of the State, was bound to comply with the Waste Directive when exercising powers conferred upon it. That obligation did not require the Agency to act beyond the scope of those powers. Articles 288 TFEU and 4 TEU did not prescribe the particular means by which the Directive’s result was to be achieved.
3. Article 4 created a hierarchy of waste-management options, but paragraph 2 required measures encouraging options producing the best overall environmental outcome. The hierarchy therefore had to be applied flexibly, in the context of the Directive as a whole and consistently with Article 1. Article 13 also required protection of human health and the environment. Whether Articles 4 or 21 had been breached depended on a close examination of all the circumstances, not merely on the descending order of priority.
4. Articles 4 and 21 did not expressly or impliedly require a Member State or regulator to produce end-of-waste guidance. Article 6(4) allowed Member States to decide case by case whether waste had ceased to be waste where Community-level criteria had not been established, taking account of applicable case law. That power could support guidance, but did not create a specific obligation to issue it.
5. On the facts, the Agency had not breached Articles 4 or 21. Its earlier focus on fuel products reflected the circumstances then prevailing. Later, the Definition of Waste Panel remained available, RPS 185 provided an interim regulatory position, and the parties had agreed that the Oil Recycling Association would prepare the detailed submission. The December 2016 decision left open further work and extended RPS 185 to 31 October 2017.
6. No obligation to provide guidance arose under domestic law. An obligation on a public authority to produce guidance about how it will operate in a particular context arises rarely, if at all, and no sufficient basis for one was established.
7. The challenge to the RPS timescales also failed. The dates were not shown to be irrational or arbitrary, and the evidence supported the inference that the Agency had considered the time required. The court declined to express wider views about resource allocation beyond the dispute.
8. A reference to the ECJ was refused. Any application for permission to appeal was to be made directly to the Court of Appeal.