England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2A 2LL
		17th March 2009

1. SIR ANTHONY MAY: We all know that fly-tipping is a mess and can be hazardous. It is right that the transport, disposal and storage of waste should be controlled, as it is by the Environmental Protection Act 1990. This statute in turn implements in this jurisdiction the European Waste Framework Directive. The version of the Directive which was current at the time relevant to these proceedings was 2006/12/EC.
2. Section 75(2) of the 1990 Act defines waste as "any substance or object in the categories set out in Schedule 2B to this Act which the holder discards or intends or is required to discard". By section 75(4) controlled waste means household, industrial and commericial waste or any such waste. Section 75(11) tells us that the definition of waste is there to assign to waste the meaning which it has in the Waste Directive. It can be seen that section 75(2) says the same as Article 1A of the Directive.
3. According to ordinary understanding, "discards" means throws away or gets rid of. It plainly imports the notion that the holder has no use for the substance or object and wants to get rid of it. Those concerned with environmental protection are, however, concerned to enlarge the meaning of this ordinary word to cover circumstances which might at the fringes make it debateable whether the substance of this was or was not waste.
4. Broadly speaking, the control of waste disposal in this jurisdiction is effected by a system of licences. Section 33(1)(a) of the 1990 Act prohibits people from depositing controlled waste or from knowingly causing or knowingly permitting controlled waste to be deposited in or on any land unless a waste management licence authorising the deposit is in place and the deposit is in accordance with the licence. So I cannot dump or have dumped controlled waste onto my drive unless there is a licence in force permitting it. By section 34(1)(a) anyone carrying or disposing of controlled waste has a duty to take all reasonable measures to prevent any contravention by someone else of section 33. So, if a lorry driver is delivering controlled waste to dump it on my drive, he has to see to it that I have a licence to have it there.
5. The question which this case stated by the Stockport Justices of 28th November 2007 raises is exemplified in most respects by the following example: if I get a lorry driver to deliver hardcore from a demolition site to my drive when I am going to use the hardcore to mend my drive, or it may be as a subbase for a concrete slab in the garage that I am constructing, is the hardcore as delivered to me waste and do I need a licence to receive it and does the lorry driver commit an offence by delivering it when I have no licence and does he have to warn me about the need for having a licence. Those are not the exact facts on which the Justices acquitted the respondent, Inglenorth Limited, of two informations under the Environmental Protection Act 1990 but they raise, in my view, the essential question which is whether the hardcore so delivered for that purpose was waste. The common sense answer reached by the Justices is that it was not because the hardcore is material which I am going to use, not material which I am going to discard. I am not going to discard it, I am not going to throw it away or get rid of it.
6. This appeal by the Environment Agency seeks to say that the Environmental Protection Act 1990 and the Directive are not or not always instruments of common sense.
7. Inglenorth Limited were the object of two informations dated 27th April 2007 as follows. The first information charged that:

"On or before 30th August 2006 being a carrier of controlled waste, [they] failed to comply with the duty imposed by section 34(1)(a) of the Environmental Protection Act 1990 in that they failed to take reasonable measures to prevent the contravention by another person of section 33 of the said Act, in that they failed to inform Linten Garden Products Limited of their need to hold a Waste Management licence in order to deposit controlled waste on land at Manchester Road, Cheadle. Contrary to section 34(b) of the Environmental Protection Act 1990."

The second information charged that:

"On or before the 30th August 2006, [the respondent] deposited controlled waste on land at Golden Days Garden Centre, Manchester Road, Cheadle, when there was no Waste Management Licence in force authorising that deposit. Contrary to section 33(1)(a) and section 36(6) of the Environmental Protection Act 1990."

8. The Justices acquitted the respondents on 28th November 2007. They heard and recorded much evidence and found the following acts:

"Mr Stephen Evans is the owner of Golden Days Garden Centres at Standish and Cheadle. Mr Stuart Campbell is the Company Secretary for the Respondent.

The Respondent has a licensed landfill site and a licensed transfer waste site.

A greenhouse at the Golden Days Standish Garden Centre was demolished in July 2006, to make way for a new building.

Demolition material was deposited and stored in the car park at the Golden Days Garden Centre, Standish site. At all times, Mr Evans wanted to put the material from the demolition of the greenhouse to some use in the business. It was Mr Evans intention that at least some of the material would be transferred to the Cheadle site for business use there. Mr Evans had no intention, at any point, to discard the material. It was a valuable commodity which Mr Evans intended to reuse.

We made no finding as to when Mr Evans formed the specific intention to use the material to make good a car park at the Cheadle site.

On or about 12 August 2006, Mr Campbell approached Mr Evans at the Standish Garden Centre site, and offered to take the material to the landfill site at Skelmersdale, operated by the Respondent. Mr Evans declined that offer and explained to Mr Campbell that he wanted some of the material transported to the Cheadle Garden Centre site to make good a car park there.

On 14 August 2006 approximately 20% of the material was transported to, and deposited at, the Cheadle Garden Centre site by the Respondent. The material occupied an area approximately 28 metres long, 3.5 metres wide and 1.5 metres high. It was deposited on a track adjacent to and owned by the Golden Days Garden Centre at Cheadle.

The relevant material contained solid breeze blocks, large and small pieces of concrete, tiles, pieces of brick, clay pipe and clay. It was not toxic, hazardous to health or a danger to the public.

At material times the Respondent did not have a Waste Management Licence authorising the deposit of waste at the Golden Days Cheadle Garden Centre site.

On 8 December 2006, Mr Evans arranged for the material on the Cheadle site to be moved to a landfill site. On 12 May 2007, Mr Evans accepted a caution. Subsequently, Mr Evans made an application for a licence."

9. We note three things initially from those findings of fact. The first is that the informations brought against Inglenorth Limited and the person of Mr Campbell concerned and concern only 14th August 2006. Mr Campbell and his company were delivering the material to the site and dropped out of the picture immediately after they had made the delivery. The second is that upon those findings Mr Campbell knew that Mr Evans intended to use the material to be transported to the Cheadle Garden Centre site to make good his car park there. Thirdly, and as an aside to the last finding, Mr Evans had said in evidence that he removed the material in December from the Cheadle site broadly because he was being threatened with prosecution by environmental officers and he had accepted a caution from them to avoid going through the bother and worry of a court case.
10. Returning to the case stated, the Justices set out their understanding of the legal framework as follows:

"The Respondent could only be guilty of depositing controlled waste when there was no Waste Management Licence in force, contrary to section 33 of the Environmental Protection Act 1990 and of carrying controlled waste and failing to comply with the statutory duty to take reasonable measures to prevent the contravention by a third party of an offence, contrary to section 34 of the Act, if the material which the Respondent deposited, was to be regarded as 'waste' for the purposes of the Environmental Protection Act 1990.

The definition of 'waste' is found in section 75 of the Act. Section 75(11) provides that 'waste' is to be given the meaning which it has in the Waste Directive, which is the directive of the European Community, known as the Waste Framework Directive ('WFD'), dating from 1975, now consolidated with subsequent amendments in Directive 2006/12/EC.

Article 1(a) of the Directive, defines 'waste' as any substance or object in the categories set out in Annex 1, which the holder discards or intends or is required to discard.

Annex 1 to the Directive lists categories of 'waste' which is not exhaustive, since it includes a catch-all group 'any material, substances or products which are not contained in the above mentioned categories'.

Articles 9 and 10 of the Directive, provide that any waste disposal or recovery operation specified in Annex IIA or Annex IIB, must obtain a permit from a competent authority.

From our understanding of the authorities, we interpreted the meaning of the word 'discard' as equivalent to 'get rid of', but understood the law to be that the words 'waste' and 'discard' should not be interpreted restrictively, and should be interpreted in the light of the aims of the Directive. These are the protection of human health and the environment, against the harmful effects caused by the collection, transport, treatment, storage and tipping of waste, and Community Policy on the environment, which aims at a high level of protection, based on a precautionary principle and a principle that preventative action should be taken.

The intention of those in control of the material to re-use it, must be a clear, immediate intention and not merely a future possibility of reuse.

However, the intention of the owners of the material at Golden Days Garden Centre, was not determinative of the matter. It was one of a number of considerations for us to take into account.

We also took into account that 'discard' covers or includes the disposal and recovery operations listed in Annex IIA and B, but the fact that a substance is treated by one of those methods does not lead to the necessary conclusion that it is 'waste'.

'Waste' includes substances discarded by their owners, even if capable of economic reutilisation, or which has a commercial value and is stored on a commercial basis for recycling or reuse.

We took into account that 'waste' includes what falls away when processing a material, and is not the end product which the process seeks to produce."

11. Pausing there, in my judgment that is a good summary of the relevant law to be applied in this case, economically set out. Mr McCullough does not accept that one sentence there correctly states the law. The sentence which he challenges is that which says the "intention of those in control of the material to re-use it, must be a clear, immediate intention and not merely a future possibility of reuse". He says that that was a misdirection. He submits that there is a distinction between the immediacy of an intention and the immediacy of use and he submits that it is the latter which would be relevant, not the former. I shall return to that point a little later in this judgment.
12. The Justices then applied their understanding of the legal framework to the facts of the case before them in these terms:

"Mr Evans, the proprietor of The Golden Days Garden Centre had no intention of discarding the material. The product would be used as hardcore material for the purpose of making up a car park at the Cheadle site. That intention was not a mere possibility, but was one clearly formed by Mr Evans shortly before or after the demolition of the greenhouse.

The greenhouse had been demolished only a short time before the visit of the officers from the Environment Agency. Mr Evans had explained his intentions at the time of the visit and clarified this in a letter written within 14 days of the visit.

It was not necessary for the material to undergo any of the formal disposal recovery operations listed in Annex II of the European Directive. Some form of sorting only would be required.

The material was never surplus to requirements. It was a valuable commodity intended for immediate re-use.

In all the circumstances, we considered that the relevant material was not 'waste' for the purposes of the Environmental Protection Act 1990 and the Waste Framework Directive 2006/12/EC.

Accordingly, we dismissed both of the informations."

13. The case stated asks the following questions of this court:

"1. Whether our analysis of the relevant legal test to be applied to determine the status of the material as controlled waste or otherwise was correct?"

As will be seen later, I would answer that question "yes":

"2. In particular, whether, as a matter of law, excavation and demolition materials are controlled waste when generated, even though the producer of the materials identifies a use for them?"

As to that question, I shall decline to answer it in the broad form in which it is put. Plainly, there may be circumstances in which excavation and demolition materials are controlled waste when generated and the excavation and demolition materials in this case may or may not have been controlled waste in whole or in part when they were generated at the Standish Garden Centre. But that question does not arise for decision in this case and I would decline to make general observations upon circumstances which do not arise for decision in the case. The question in this case does not, in my judgment, concern the status of the materials at the Standish site but their status upon delivery to the Cheadle site. For the purpose of analysis, it did not matter where those materials came from. They might just as well have been brought from a store of dumped hardcore elsewhere.

14. The third question posed by the case is this:

"3. Whether the finding of fact that the material transported to and deposited at Cheadle Golden Days Garden Centre was not waste and had not discarded by the Garden Centre's owner Mr Evans, could be supported by the evidence before the court?"

As to that, and in short order, I am quite clearly of the view that the Justices findings of fact were available to them on the evidence. The question for this court is whether upon those findings of fact they were or were not correct to dismiss the informations for the reasons which they gave.

15. Mr McCullough has very carefully referred us to a number of authorities. I shall refer to four of them. I should say that I for my part, and I am sure my Lady agrees, am very grateful to Mr McCullough for the great care and painstaking effort that he has put not only into his oral submissions but in particular into the comprehensive written submissions that he has made.
16. The first authority to which I would make brief reference is called ARCO Chemie Nederland Ltd v Minister van Volkshuisvesting, Ruimtelijke Ordening en Milieubeheer [2002] QB 646. It is a decision of the European Court of Justice. I do so in quite brief order, recollecting that in a subsequent case called OSS, to which I shall refer in a moment in rather greater detail, Carnwath LJ said at paragraph 47 of at least parts of ARCO, which he had examined at great length, that after reading and rereading the passage many times it remained a mystery to him. However, one does get from the headnote of ARCO the proposition that the question in any case whether a substance or object is waste has to be decided in the light of all the circumstances, regard being had to the aim of the Directive and the need to ensure that its effectiveness is not undermined and in accordance with a number of principles. Those principles include the way in which a substance is treated or used did not determine conclusively whether or not it was to be classified as waste and it did not necessarily follow from the fact that certain methods of disposing of or recovering waste were described in Annexes IIA and IIB of the Directive that any substance treated by one of those methods was to be regarded as waste; that other factors that were similarly not conclusive as to whether a substance was waste but which could constitute evidence that it was were that the substance was commonly regarded as waste; that its use, as in that case of fuel, was a common method of recovering waste; and that it was a production residue which was not of itself sought as fuel and for which no other use than disposal could be envisaged.
17. Mr McCullough points out correctly that whether a substance is or is not commonly regarded as waste is a matter of relevance and no doubt it is. Hardcore derived from a demolition site may well commonly and often be regarded as waste but it remains the question whether it will always be waste in particular circumstances.
18. The case upon which Mr McCullough rightly concentrated at some length is that of the application of Palin Granit Oy [2002] 1 WLR 2644, another decision of the European Court of Justice. That case concerned material derived from a granite quarry and the issue concerned not quarried granite, which was taken away for use, but stone which was left over after the quarrying operation had taken place and which was stored on an adjacent site for possible future use. The court held that goods, materials or raw materials that resulted from a manufacturing or extraction process whose primary aim was the production of another item were by-products which had economic value and were characterisable as non-waste if, but only if, their reuse was not a mere possibility but a certainty without any further processing prior to reuse and as an integral part of the production process.
19. I note straight away that the material with which the present case is concerned is not material resulting from a manufacture or extraction process.
20. The headnote of Palin Granit contains a summary of matters alluded to by the court as follows:

"The lists of substances and wastes which may be classified as waste, appearing in Annex 1 to Directive 75/442 [which was a predecessor of the present one] and in the European Waste Catalogue in Commission Decision 94/3/EC, are only intended as guidance and the classification of a substance or object as waste is primarily to be inferred from the holder's actions, which depend on whether or not he intends to discard the substances in question."

21. Accordingly, one supposes that the main question in the present case was whether the material delivered to Mr Evans' Cheadle site should be classified as waste and that the answer to that was primarily to be inferred from Mr Evans' actions and that those depend on whether or not he intended to discard the substances in question.
22. Paragraph 22 of the judgment in Palin Granit reads as follows:

"In the first sub-paragraph of article 1(a) of Directive 75/442 waste is defined as 'any substance or object in the categories set out in Annex I which the holder discards or intends or is required to discard'. Annex I and the European Waste Catelogue clarify and illustrate that definition, by providing lists of substances and objects which may be classified as waste. However, those lists are only intended as guidance and the classification of a substance or object as waste is, as the Commission rightly submits, primarily to be inferred from the holder's actions, which depend on whether or not he intends to discard the substances in question. Therefore, the scope of the term 'waste' turns on the meaning of the term 'discard'..."

And then there is observation on the interpretation of the word "discard", from which Mr McCullough submits that it is a term of art which in truth should be regarded as extending in some circumstances at least further than gets "rid of" or words to that effect. He points to paragraph 25 of this judgment, which reads as follows:

"Directive 75/442 does not provide any decisive criteria for determining the intention of the holder to discard a given substance or object. Nevertheless, the Court, which has been asked on a number of occasions for preliminary rulings on whether various substances are to be regarded as waste, has provided a number of indicators from which it may be possible to infer the holder's intent. The classification of leftover stone and the decision as to whether it falls into the category of residues from raw materials extraction, at head Q 11 of Annex I to that directive, must be made having regard to those factors and in the light of the aims of [the Directive]."

I pause there to say that in the present case it is not necessary to infer Mr Evans' intent because the Justices have made a clear finding of fact as to what that intent was.

23. Going on, and paragraph 26 deals with what Mr McCullough submits are some of the indications to which we must have regard, the judgment proceeds:

"26. The Commission considers that the operations of disposal and recovery of a substance or an object manifest an intention to 'discard' it within the meaning of article 1(a) of Directive 75/442. Articles 4, 8, 9, 10, and 12 of Directive 75/442 describe those operations as methods of treatment of waste. Those operations include deposit into or onto land, which includes use as landfill material (head D1 of Annex IIA), storage pending another disposal operation (head D15 of Annex IIA) and storage pending a recovery operation (head R13 of Annex IIB). The storage of leftover stone at the place of extraction or at a storage site thus constitutes either a disposal or recovery operation."

24. It will be recalled that the Justices had found in the present case that it was not necessary for the material to undergo any of the formal disposal recovery operations listed in Annex II of the European Directive. Some form of sorting only was required, and, in the context of paragraph 26 of Palin Granit, first of all the Justices had found that there was no recovery operation which Mr Evans was going to perform at the Cheadle site and, secondly, their finding, as I shall explain shortly, does not in my judgment amount to anything which may be regarded as a storage of the material on the Cheadle site. Certainly it is that within the narrow confines of paragraph 26 the material was deposited onto Mr Evans' land there but the question still remains whether what was deposited was or was not properly to be classified as waste. Paragraph 27 moderates paragraphs 26 in these terms:

"However, the distinction between waste disposal or recovery operations and the treatment of other products is often difficult to discern. Accordingly, the Court has already held that it may not be inferred from the fact that a substance undergoes an operation referred to in Annex IIB to Directive 75/442 that that substance has been discarded and may therefore be regarded as waste [and they refer to ARCO]. The application of an operation listed in Annex IIA or IIB to Directive 75/442 therefore does not, of itself, justify the classification of that substance as waste."

As Mr McCullough rightly puts it, those features that are recorded in particular in paragraph 26 of this judgment can at best only be regarded as indicators. He then refers to paragraph 36 of the judgment in Palin Granit, which reads as follows:

"However, having regard to the obligation, recalled at paragraph 23 of this judgment, to interpret the concept of waste widely in order to limit its inherent risks and pollution, the reasoning applicable to by-products should be confined to situations in which the reuse of the goods, materials or raw materials is not a mere possibility but a certainty, without any further processing prior to reuse and as an integral part of the production process."

25. That paragraph, of course, was relevant to the stonework works that were the subject of the case and in particular to the stone that was left after quarrying, which might properly be regarded as a by-product and, of course, that was an operation which could be properly described as a production process. In the present case, in my view, we really have nothing that could be regarded as a production process nor anything that could be regarded as a by-product. We simply have the product of a demolition process at the Standish site to produce what may conveniently be referred to as hardcore.
26. The next case that it is convenient to refer to is R(OSS Group Limited) v the Environment Agency and DEFRA, which is a decision of the Court of Appeal whose neutral citation number is [2007] EWCA Civ 611 and the principal judgment in that case was given by Carnwath LJ. The facts of the case are rather far removed from those in the present case, as is seen from the opening sentence of Carnwath LJ's judgment, where he said that:

"The business of OSS is the collection of waste lubricating and fuel oil from places such as garages and workshops, and its conversion into marketable fuel oil. The issue in short is when the material ceases to be 'waste' for the purposes of the Waste Framework Directive. Is it at the completion of the process of preparing it for use as fuel ... or when it is actually burnt."

The judge held that it was the latter.

27. Paragraphs 13 and 14 of Carnwath LJ's judgment consider at some length the meaning of the word "discard". He introduces paragraph 13 with the sentence "The ordinary English meaning of the word 'discard' is an imperfect guide to its significance in the definition of waste" and in paragraph 14, part of which I shall read, he considers how that has emerged from various authorities. He says this:

"It is clear, however, that it is only part of the story. The following points, some of which will need further discussion, can be found in the cases:

i) the concept of waste 'cannot be interpreted restrictively'.

ii) Waste, according to its ordinary meaning, is 'what falls away when one processes a material or an object, and is not the end product which the manufacturing process directly seeks to produce' [and reference in that respect is made to Palin Granit].

iii) The term 'discard 'covers' or 'includes' disposal or recovery within the terms of Annex IIA and B; but the fact that a substance is treated by one of the methods described in those Annexes does not lead to the necessary inference that it is waste.

iv) The term 'discard' must be interpreted in the light of the aims of the Waste Framework Directive, and of article 174(2) of the treaty, respectively:

a) The protection of human health and the environment against the harmful effects caused by the collection, transport, treatment, storage and tipping of waste; and

b) Community policy on the environment, which aims at a high level of protection and is based on the precautionary principle and the principle that preventive action should be taken [and reference there is made to Palin Granit].

v) Waste includes substances discarded by their owners, even if they are 'capable of economic reutilisation' or 'have a commercial value and are collected on a commercial basis for recycling, reclamation or re-use'."

28. Later in the judgment, under the heading "discussion", Carnwath LJ has this:

"55. As this review demonstrates, a search for logical coherence in the Luxembourg case-law is probably doomed to failure. A fundamental problem is the court's professed adherence to the Article 1(a) definition, even where it can be of no practical relevance. The subjective 'intention to discard' may be a useful guide to the status of the material in the hands of the original producer. However, it is hard to apply to the status of the material in the hands of someone who buys it for recycling or reprocessing; or who puts it to some other valuable use. In no ordinary sense is such a person 'discarding' or 'getting rid of' the material. His intention is precisely the opposite.

56. 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 Article 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."

That is not a passage which encourages finding a definitive answer to the problems such as those in this case by searching through European Court of Justice jurisprudence.

29. The final case to which brief reference needs to be made is a decision of the Northern Irish Court of Appeal which is called Department of the Environment and Heritage Service v Felix O'Hare and Company and others [2007] NICA 45. That was a case in which a contractor and a subcontractor had excavated material from a playing field in preparation for the construction of an extension and the subcontractor, having excavated the material and separated soil from clay and stones and so forth, removed it to the site of a third party called Mr Samuel Johnson, who used the material to erect a windbreak on his lands. Mr Johnson did not have a waste management licence or exemption entitling him to use the soil if it constituted controlled waste. The Northern Irish legislation, which is set out in the judgment, is not identical to, but is very similar to, the English legislation to which I have referred and the decision of the Northern Irish Court was that the soil "when excavated represented material which had been disposed of in some manner". It had to be got rid of and in terms of the Directive it was discarded and the court held that in those circumstances, and, as I read it, for that main reason, the material was waste in the hands of Mr Samuel Johnson.
30. It is certainly correct that that case has quite close similarities with the present one but, apart from the fact that it is in a different jurisdiction, there are these important differences. First, that from the sentence from paragraph 16 that I have just read out, the court concentrated on what the material was when it was excavated and had to be got rid of and, secondly, and importantly, that so far as I can see the court did not have in that case the kind of findings of fact which we have in the present case by the Stockport Magistrates.
31. Mr McCullough has in his written submissions summarised the points that he would make as follows. He submits that the Magistrates in the present case were wrong in law in interpreting the meaning of the word "discard" as being equivalent to "get rid of". He submits that they failed to apply the correct test in order to distinguish waste residue from non-waste product. He submits that they wrongly considered that the intention to reuse it must be immediate when the relevant question was whether the reuse itself is immediate. He submits that they took into account an irrelevant factor that no Annex II disposal or recovery operation was to be undertaken on the material which in any event was mistaken on the facts found. Fifthly, he submits that properly applying the definition of waste in the Environmental Protection Act, as imported from the Waste Framework Directive, the Magistrates could not rationally have concluded that the demolition material involved was not waste.
32. On the question of the need for reuse being immediate, in my judgment certain analysis is necessary. First of all, the Magistrates found explicitly that in Mr Evans' hands the material which Mr Campbell deposited was a valuable commodity intended for immediate reuse and they have found as a fact that Mr Campbell knew that the intention was to use the material at the Cheadle Garden Centre to make good a car park there.
33. No doubt questions might arise as to whether a use of deposited material for purposes such as building works was to be immediate. No doubt if it were Mr Evans that was being prosecuted that would be a question which might arise and might or might not have been decided in his favour or against him. Two things, however, arise in the present case. First, as Mr McCullough accepted, immediate use cannot be taken literally. As for example, if material is deposited at a site intending it to be used straight away for building operations, if it is not used straight away, because, for instance, the weather is bad and prevents building operations; or other and different material is required to be delivered first before this material can be used; or machinery has to be brought on to the site before it can be used and there is some delay before it is brought to the site; any of these examples would not, depending on the facts, prevent the material from being reused immediately, if that is the expression that needs to be addressed. The distinction in my judgment must be between depositing the material for storage pending proposed reuse and depositing it for use more or less straight away without it being, in any sensible use of the word, stored. Depending always on the facts, hardcore which is going to be used next week for current building operations is not being stored.
34. Secondly, the issue in this case was not whether Mr Evans had been guilty of an offence of having the waste material on his site without the proper licences, but whether Mr Campbell and his company were guilty of the two offences charged. The two offences charged can only be referable to what Mr Campbell did or did not do and what he knew or did not know on 14th August 2006. They are in fact charged as being committed on or before 30th August 2006 but Mr Campbell's involvement only took place on 14th August and ceased once he had delivered the material. Quite plainly, since Mr Campbell was not himself going to reuse this material, the question of its immediate use can only be judged as a matter of Mr Evans' then intention because by the time Mr Campbell had left he had dropped out of the picture and Mr Evans was never, one supposes, going to use the material within five minutes of it being delivered.
35. Accordingly, in my judgment, the point made by Mr McCullough in relation to intention to use, immediate intention to use or immediate use is not in point for the purposes of the informations brought against Mr Campbell.
36. Mr McCullough's main general submission is, as I understand it, as follows. This material was demolition material which at the Standish site plainly was waste. It was brought to the Cheadle Garden Centre site and it remained waste not only while it was being brought but when it arrived and it should have been regarded as waste and the subject of the requirement of the licence until Mr Evans actually used it, which in the event he did not.
37. In my judgment, upon the findings of fact of the Magistrates in the present case that is not a correct analysis. It may well be, and it does not matter, that the material was or was capable of being waste after it had been produced by the demolition exercise of the Standish site and before it was removed for use elsewhere. If it been taken to a waste disposal site straight from Standish, no doubt it would have been waste throughout that operation. But the question, and in my judgment the only question in the present case in relation to the informations brought against Mr Campbell in the terms in which they were, is whether this was waste when it was deposited at the Cheadle site. Upon the Justices' findings of fact, at that stage Mr Evans, and I am quoting from the case:

"... had no intention of discarding the material. The product would be used as hardcore material for the purpose of making up a car park at the Cheadle site. That intention was not a mere possibility, but was one clearly formed by Mr Evans shortly before or before the demolition of the greenhouse."

And, I would add, that intention was, upon the Justices findings, communicated to Mr Campbell and they further found that the material was a valuable commodity intended for immediate reuse.

38. In my judgment, those findings of fact entirely support the decision that the Justices came to that upon its deposit at the Cheadle Garden Centre this material was not waste. It was no more waste when it was delivered to the Cheadle site upon those findings of fact then would be hardcore delivered to my drive for me to use to mend the drive or to use as a subbase for my garage floor for concrete to be put on top of it. It may well be that this material was waste when it was at Standish but, given the findings of fact by the Magistrates, it was not waste and they properly so found upon its delivery to the Cheadle Garden Centre. In my judgment, the Justices came to the right decision for those reasons and I would dismiss this appeal.
39. MRS JUSTICE DOBBS: I agree.
40. MR McCULLOUGH: My Lord, can I very briefly firstly correct one thing, which I should have corrected earlier? It is an error, a clear typographical error, in the case stated in relation to the charge. The section in the charge --
41. SIR ANTHONY MAY: Is this 36(6)?
42. MR McCULLOUGH: It is 36(6). It should be 33(6).
43. SIR ANTHONY MAY: Yes. Thank you very much. I think I spotted that actually. Thank you.
44. MR McCULLOUGH: I am sorry that I had not brought it to the court's attention earlier.
45. SIR ANTHONY MAY: Yes.
46. MR McCULLOUGH: My Lord, the only other thing is that I am instructed to seek permission to appeal. Very briefly, I do so both on the basis that in my submission the appeal would have reasonable prospects of success and this is a difficult area of the law that has troubled both the courts in the present jurisdiction and Luxembourg. It is at least, I would submit, arguable that if the material was waste at Standish, as the court has found in your judgment -- well, at least it is a possibility, where it may well have been, then it could not have stopped being, at least, until it was disposed of or recovered within the terms of operations identified in Annex IIA or B and in short, in my submission, if that is so, at least arguably it is so, then the appeal would succeed --
47. SIR ANTHONY MAY: Is the route of appeal to the House of Lords?
48. MR McCULLOUGH: My Lord, I think the route of appeal is to the Court of Appeal. I confess, I do not have the -- because I do not submit that it would be a leapfrog appeal.
49. SIR ANTHONY MAY: It is not a leapfrog appeal but this is a criminal matter.
50. MR McCULLOUGH: Yes. I confess I have not -- I had assumed, maybe wrongly, that the --
51. SIR ANTHONY MAY: How did the matter arise in OSS? That is the Court of Appeal.
52. MR McCULLOUGH: That is the Court of Appeal. I think that was a judicial review. It was a judicial review --
53. SIR ANTHONY MAY: Well, this is a criminal case stated and my understanding is that appeal is to the House of Lords direct. It is not leapfrog.
54. MR McCULLOUGH: No.
55. SIR ANTHONY MAY: For which purpose you need a certificate. So what you are really asking, in the first instance, is for us to certify a point of law.
56. MR McCULLOUGH: My Lord, yes, a point of law of general public importance.
57. SIR ANTHONY MAY: You have not formulated it exactly but you have indicated what it would be.
58. MR McCULLOUGH: I have. I do not know if it would be -- I am looking at the time -- if it would be acceptable to the court for me to come back at 2.00 or 2.15 with a formulated point, also with -- in a position to give what I should have been in a position to give as well, but the precise statutory basis for the route of appeal and its destination --
59. SIR ANTHONY MAY: Well, perhaps we should do that, by which I mean perhaps we should give you the opportunity over lunch. We will talk about whether we will certify or not. I have to say that my inclination is that this is a case that goes off on a finding of fact.
60. OK. Shall we meet again at 2 o'clock? Thank you very much.
(The Luncheon Adjournment)
61. SIR ANTHONY MAY: Yes.
62. MR McCULLOUGH: My Lord, my Lady, thank you for giving me further time to get my tackle in order, as it were. On the limited researches I have been able to do over lunch, they do indeed confirm the correctness of --
63. SIR ANTHONY MAY: Yes. I mean, I think this has to be the House of Lords, does it, as it is a criminal matter?
64. MR McCULLOUGH: Indeed.
65. SIR ANTHONY MAY: That is, amongst other things, why it is in the Divisional Court.
66. MR McCULLOUGH: Indeed. In which case there are two hurdles that that face me. The first is the requirement for certification of a point of law of general public importance and the second, and independently, is the application for leave to appeal. In respect of the first, the decision of this court, as I understand it, will be determinative if it is against me. In respect of the second, I would be able to renew an application but only with the benefit of the certificate.
67. SIR ANTHONY MAY: That is right. That is how we understand it.
68. MR McCULLOUGH: Could I hand up my proposed formulation of the point and very briefly -- (handed)
69. SIR ANTHONY MAY: Yes?
70. MR McCULLOUGH: Very briefly, the point arises fairly starkly, in my submission, from the Court of Appeal's judgment in OSS. In your judgment, my Lord quoted paragraph 55 and some following paragraphs, I think, indicating the lack of logical coherence in the Luxembourg case law. The conclusion of that passage led Carnwath LJ to say:

"In other words, although the Court continues to play 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."

71. Now, my Lord, the point of law as formated brings that observation to a head as a point of law and in my submission is a point of law that is of general public importance as to how the discard test should be applied, whether simply by reference to the holder's intention, as the Luxembourg case on one view appears to indicate, on a plain reading of the words appears to indicate, or on the other hand whether objective indicators, as Carnwath LJ identified, as being applied in practice in the determination of the test. So, my Lord, I do seek certification, whether or not you go on to refuse me permission to appeal.
72. In relation to permission to appeal, in my submission the point is both arguable and there is some other substantial ground why it should be argued and that overlaps with my submission in relation to the point of law. Notably, as far as I am aware, the House of Lords has not considered this vexed question of the meaning of waste and the meaning of discard in determining the correct definition of waste and there are a number of decisions, both domestic and in Luxembourg, and it would be valuable in my submission to have the House of Lords consider and determine the point in light of those. But, as I say, in any event I do respectfully seek the certification --
73. SIR ANTHONY MAY: Yes. Thank you very much. (pause)
74. Mr McCullough, I am afraid to say we are not persuaded to certify. In our view, this case turns almost exclusively on findings of fact and would not, we think, be a suitable vehicle to go to the House of Lords on the kind of point that you are wanting to have clarified. So we refuse to certify and the question of leave therefore does not arise.
75. MR McCULLOUGH: My Lord, thank you.
76. SIR ANTHONY MAY: Thank you very much. We are grateful to you for all the work you have done on paper.