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Waste Legal Regime: Case Law Review

Karen Jones

Partner Karen Jones, in our Planning and Environmental Law team, looks at case law examples of the waste legal regime in action.

2016 provided us with some interesting case law examples of the waste legal regime in action.

The Court of Appeal considered landfill tax and biodegradable materials. Patersons of Greenoakhill Limited v Revenue and Customs Commissioners [2016] concerned classification of biodegradable material as waste. The appellant extracted and burnt methane, produced by a proportion of the waste deposited at its landfill site. This was sold to the National Grid. The appellant argued it should not be classified as waste when the methane, which it decomposed into, would be burnt to produce electricity. No landfill tax should be charged on it.

The Court of Appeal unanimously rejected the appeal. It focused on the word “material” but as defined in the Finance Act 1996. The Appellant sought to argue that “material” should include any by-product. That argument was rejected. The Court said “material” must be given its usual meaning of material in the form it exists at the date of the relevant deposit on the landfill site. Black LJ explained the Court’s decision in this way:

‘The methane was not capable of use by Patersons at the time of the landfill, an intention to use the methane [in the future] does not assist in determining whether the disposal was done “with the intention of discarding” the material’.  

This case confirms the wording of the relevant taxing statute will be the starting point for any interpretation. In determining where tax liability should fall, the Court will focus primarily on the words of the relevant statute.

A major waste company were ordered to pay more than £1.2 million in April after pleading guilty to historic waste offences where more than 17,000 tons of waste was deposited and stored illegally. The first offence concerned receipt and storage of large quantities of hazardous waste including construction and demolition waste containing asbestos, contaminated concrete and treated wood. The company pleaded guilty and was fined a total of £700,000 for storing hazardous waste in breach of its environmental permit, and £200,000 for treating, keeping or disposing of controlled waste in a manner likely to cause pollution or harm to human health contrary to Section 33 of the Environmental Protection Act 1990. The second offence involved deposit of non-hazardous trommel fines. A fine of £100,000 for storage other than in accordance with an environmental permit and deposit of controlled waste contrary to Section 33 was imposed. Environment Agency costs of £243,995 for the investigation and prosecution of the offences were also imposed.

In November 2016, a prosecution occurred when a company was storing waste that exceeded permit height restrictions by six meters. During inspections, EA officers provided advice and guidance and issued a site warning for non-compliance. The site had several fires and when EA officers returned they observed that additional waste had been added and levels of more than 10 meters were observed. Total fines of £20,000 were imposed plus costs of £8,000.

The Agency also reported a case in Teesside where a wood recycling firm was ordered to pay £72,000 and costs of £71,000 for offences under s33. The company admitted keeping waste wood in a way likely to cause pollution to the environment or harm to human health. The company’s permit was suspended pending reduction of stocks of wood piles on site.

The company was noted to have shown commitment to improving its fire prevention and protections measures in mitigation and up until this breach there have been no criticisms of their operations.

These cases’ demonstrate the ambit of the environmental regime. The case of Paterson demonstrates the potential uncertainty where there are overlapping legislative regimes.

For more information, please contact Karen Jones or a member of our Planning and Environmental Law team.

This article is intended for the use of clients and other interested parties. The information contained in it is believed to be correct at the date of publication, but it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional advice.