Once lubricating oil had been processed into fuel oil suitable for burning, it ceased to be waste so as to require it to be handled and stored as waste.
Held: Carnwath LJ discussed the meaning of the term ‘discards or intends . . to discard’. The use of the subjective test, while useful when examining the product in the hands of the ‘producer’ of waste, may not be apt to define the status of the material in the hands of a subsequent holder of the material for recycling or re-processing. Carnwath LJ expressed the ‘general concept’ of the discard of waste as getting rid of something which is unsuitable, unwanted or surplus to requirements.
Carnwath LJ summarised the European case law: ‘Understandably, the court has held that a material does not cease to be waste merely because it has come into the hands of someone who intends to put it to a new use. But that should not be because it still meets the Art.1(a) definition in his hands; but rather because, in accordance with the aims of the Directive, material which was originally waste needs to continue to be so treated until acceptable recovery or disposal has been achieved. Unfortunately the court has consistently declined invitations to develop workable criteria to determine that question. Instead, it continues to insist that the ”discarding” test remains applicable, even where the ”holder” is an end-user such as Epon, whose only subjective intention is to use, not to get rid of, the materials in issue . . In other words, although the Court continues to pay lip-service to the ”discarding” test, in practice it subordinates the subjective question implicit in that definition, to a series of objective indicators derived from the policy of the Directive. What is required from the national court is a value judgment on the facts of the particular case in the light of those indicators.’
Carnwath LJ, (Lord Clarke MR, Maurice Kay LJ
[2008] Env LR 8, [2007] EWCA Civ 611, Times 06-Jul-2007
Bailii
England and Wales
Cited by:
Cited – Ezeemo and Others v Regina CACD 16-Oct-2012
The defendants had been charged with offences relating to their intended transporting of waste materials to Nigeria. They appealed, complaining that the judge had directed that the offence under regulation 23 was an offence of strict liability.
Cited – Environment Agency v Thorn International UK Ltd Admn 2-Jul-2008
The Agency appealed by case stated against the Magistrates’ decision to acquit Thorn of keeping controlled waste contrary to section 33 of the 1990 Act. For that section ‘waste’ had the same meaning as that provided in Art 1(1)(a) of the WFD. The . .
Lists of cited by and citing cases may be incomplete.
Environment, Licensing
Updated: 02 November 2021; Ref: scu.253746