THE QUEEN (ON THE APPLICATION OF NEW EARTH SOLUTIONS (WEST) LIMITED) v ENVIRONMENT AGENCY

The classification of a waste shipment as recovery or disposal depends on the waste operation actually undertaken. The operations listed in Annexes I and II to the Waste Framework Directive represent the common categories. Where an operation falls within a listed category, the decision-maker may classify it by reference to that category. Only where there is genuine uncertainty or overlap must the operation be assessed case by case by reference to the Directive’s objectives and definitions.

A D9 operation is distinct from ordinary disposal operations because it includes treatment producing material that is subsequently discarded. Its eventual destination may therefore be considered. The competent authority’s assessment of the principal result is a matter of expert judgment subject to judicial review. The claim was dismissed.

New Earth Solutions sought judicial review of the Environment Agency’s withdrawal of consent for exporting hazardous air pollution control residue from England to Norway. The residue was mixed with sulphuric acid at a Norwegian facility, replacing virgin limestone in the treatment process. The resulting sludge was deposited in a former quarry.

The Norwegian authority regarded the shipment as recovery. The Environment Agency classified the operation as disposal, specifically D9 disposal, and concluded that its principal purpose was disposal rather than recovery. The claimant argued that substitution was a separate recovery operation and that the Agency was required to assess only the first operation after shipment. The central issues concerned the application of SITA, the meaning of D9, the relationship between the Annexes and the definition of recovery, and the degree of judicial deference owed to the Agency.

1. The claim was dismissed. The Agency was entitled to withdraw consent because the shipment had been incorrectly classified as recovery. The Norwegian authority’s contrary view did not bind the Agency; under the transfrontier shipment regime each competent authority must reach its own assessment.
2. The principle in SITA, that classification may depend on the first operation after shipment, did not apply to the present case. SITA concerned a composite process which did not fall within a listed operation and involved distinct stages. The present operation was assessed as D9. Following United Utilities, D9 is generically different from ordinary disposal operations because it concerns physico-chemical treatment producing a result later discarded. The eventual destination of that result could therefore be taken into account.
3. The lists of operations in Annexes I and II to the Waste Framework Directive identify the most common disposal and recovery operations. Where an operation falls within a listed category, the decision-maker may classify it by reference to that category. Where there is genuine uncertainty or overlap, the operation must be assessed case by case in light of the Directive’s objectives and definitions, including Article 3(15).
4. The assessment of the principal result of a waste operation is prima facie a matter of judgment for the expert environmental regulator. The court must afford a margin of appreciation in technical and scientific matters, while retaining responsibility for identifying errors of law and irrationality.
5. The Agency had rational and evidence-based grounds for concluding that the treatment and subsequent landfilling constituted a D9 disposal operation and that the principal purpose was disposal. It was not necessary to decide whether substitution of APCr for virgin limestone was itself a distinct recovery operation. Even if it were, that would not prevent the Agency from considering the treatment and subsequent disposal or from classifying the overall operation as D9.