England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT LEEDS

		Royal Courts of Justice Strand, London, WC2A 2LL
		07/08/2015

Mrs Justice Patterson:

Introduction

1. This is an application for judicial review of a decision dated 29 January 2015 by an inspector, Mr Sproule BSc Msc Msc MRTPI MIEnvSc CEnv, appointed by the Secretary of State for Environment, Food and Rural Affairs to determine an appeal made by the claimant against a refusal by the interested party to grant a Standard Rules Environmental Permit 2010 number 8-100KTE.
2. The central issue is the proper interpretation of article 3(15) of Directive 2008/98/EC otherwise known as the Waste Framework Directive (WFD).
3. The claimant whose name changed on 1 August 2015 to Tarmac Aggregates Limited is the mineral operator of a site known as Methley Quarry, Green Lane, Methley, Leeds. Mineral extraction has been proceeding at the quarry for many years.
4. The claimant applied for planning permission for an extension of a sand and gravel extraction operation at Methley Quarry on the 14 August 2006. The extension was to extract a total of 432,700 tonnes of sand and gravel over a two to two and a half year period (although later extended), followed by the importation of around 270,000 cubic metres of inert materials. As part of the restoration of the site it was proposed to create two water bodies – one for nature conservation and the other as open water. Open farmland and lakes created by earlier mineral working formed the southern and eastern boundaries of the site. The Environment Agency was consulted on the application and had "no objection subject to condition".
5. The restoration proposed had been the subject of negotiation between the claimant and Leeds City Council, the local planning authority. The officer report noted that the site was split by public footpath 51 which ran north – south. To the east of the footpath, an area of wetland was proposed as there was to the west, albeit that was slightly smaller. The footpath was dealt with in the officer report under the heading 'Public Rights of Way'. That said:

"Footpath 51 crosses the site in a north – south direction. Appropriate measures would be taken to ensure the continued safety of any member of the public using this footpath whilst the workings are present. The footpath would be diverted temporarily during the working of Phase 10C but would then be reinstated along its definitive line upon restoration."

6. Planning permission was granted with conditions. Condition 41 dealt with restoration and said, inter alia:

"The site shall thereafter be restored in accordance with the approved environmental statement dated August 2006 and approved plan reference M7/PL05/04REVB."

The reason for the condition was to ensure that the site was restored to an acceptable standard.

7. The plan incorporated in the planning permission showed footpath 51 crossing the site. The environmental statement envisaged that the footpath would be diverted temporarily after the working of phase 10B for the duration of phase 10C. After that the footpath would be reinstated upon its original alignment as shown on the definitive map.
8. On 20 March 2009 a temporary public path diversion order was made for a period of six years diverting footpath 51 from its original route to a diverted route around the side of the quarry for a total distance of 285 metres. Paragraph 2 of the order stated:

"On restoration of the site subject to mineral extraction, the section of the footpath (Rothwell Path number 51) is to be reconstructed on its original line to the satisfaction of Leeds City Council."

9. The planning consent was varied subsequently on the 2 April 2012 to allow mineral extraction until 30 November 2014 with full restoration by the 30 November 2015.
10. Because the proposal involved the deposit of waste the claimant had to apply to the interested party for an environmental permit. A permit is needed to carry out a waste recovery or waste disposal operation.
11. Guidance issued by the defendant in October 2009 on environmental permitting under the WFD posed the question "What is a waste disposal or recovery operation?" It said:

"3.5. One of the key aims of the Directive is to promote the better use of resources by encouraging the use of waste for beneficial purposes. To this end, recovery operations which result in waste being used in place of primary resources are to be encouraged over disposal operations which are intended to simply get rid of the waste safely. It is necessary therefore to distinguish clearly between disposal and recovery operations. An environmental permit is normally required for both types of operations but the applicable requirements differ according to the type of operation."

12. The interested party is an executive non-departmental public body with responsibility for (amongst other things) regulating major industry and waste within England. Of relevance here, it is the body responsible for determining applications for an environmental permit under the Environmental Permitting (England and Wales) Regulations 2010 (2010 Regulations). Amongst the activities that require an environmental permit are waste disposal and waste recovery operations.
13. An appeal against the refusal by the interested party to grant an environmental permit lies to the defendant, the Secretary of State for Environment, Food and Rural Affairs: see regulation 31(2) of the 2010 Regulations.
14. The claimant made an application to the interested party for a standard rules environmental permit on 4 February 2013.
15. Following usual procedure the interested party spoke to the claimant and followed that up with an email dated 26 February 2013 and a recovery versus disposal determination advice dated the previous day. That indicated that what was proposed in the waste recovery plan did not meet the standard rules criteria and was not a recovery operation. It continued:

"The land raising aspect of the application to provide a platform to build the reinstated path on is not considered a construction activity but that of land restoration. The construction of the path itself using waste material or deposit of waste to create footings to directly support the path could be considered use of waste in construction however the need to deposit >8 metres of waste to provide this elevated platform is seen as a land restoration proposal."

16. The claimant responded to the notification challenging the approach of the interested party and its reliance on its own guidance, EPR 13, which posed a series of questions which the interested party thought apposite to determine whether the proposal was for disposal or recovery.
17. The interested party responded saying:

"Our determination that this is a disposal activity is supported by RGN 13 which states that the benefit should be in proportion to the amount of waste deposited. If a large quantity of waste is required for a small benefit then this indicates a disposal activity.

The re instating of a footpath that has been removed is in itself not considered a benefit. This is covered in RGN 13 which states that there must be a need to create the track and this must be demonstrated in the waste recovery plan justification. The Waste Recovery Plan states that it is a requirement of the Planning Permission that the path be reinstalled when the site is restored. However, the fact that the path is currently redirected and that there is no evidence of how often the path will be used and how many people used the previous footpath 51 route who have been inconvenienced by the new route and to what extent, the benefit does not appear large."

It concluded:

"We are not stating that this activity can not be permitted under EPR however it has been refused a SR2010No8 Permit, instead it would require a bespoke permit for the disposal of waste onto land."

18. On 16 April 2013 formal notice of refusal was served by the interested party. The attached schedule contained the reasons for refusal and said that the application had been refused as, having assessed the waste recovery plan, it had been concluded that the proposed operation was a disposal operation. The interested party had also concluded that the whole of the proposed activity was not construction. There was a more detailed annex attached to the decision which summarised how the interested party had taken its decision by reference to the assessment of the submitted waste recovery plan using Regulatory Guidance Note EPR 13. The five questions to be answered using EPR 13 in such an assessment were:

i) is there a clear benefit from the activity?

ii) is the recovered waste material suitable for its intended use?

iii) is the minimum amount of waste being used to achieve the intended benefit?

iv) is the waste being used as a substitute for a non-waste material?

v) will the proposal be completed to an appropriate standard?

19. Responses to questions (i), (iii) and (iv) have been relied upon by the claimant. The responses read:

"1) Is there a clear benefit from the activity?

The intended benefit of this activity is the reinstatement of a footpath to its original location following quarrying operations. The operator is proposing to deposit imported waste material to raise the land approximately 8 metres to allow for the footpath to lie above ground water levels.

Planning permission has been granted for the restoration of the footpath, which during quarrying operations was diverted but still open to the public.

The benefit of an activity should be proportionate to the amount of waste proposed to be used, as there is currently a diverted path in place the amount of waste proposed to be deposited to raise the land is considered out of proportion to the intended benefit.

…

3) Is the minimum amount of waste being used to achieve the intended benefit?

The operator has calculated that it would be necessary to import approximately 40,930 m³ of inert waste material to reinstate the footpath, based on a waste density of 1.7 tonnes/m³ the volume of waste necessary is equivalent to approximately 69,581 tonnes.

The operator has provided details regarding the engineering design of the deposited structure including suitability of gradients to provide a raised platform fit for purpose which is not excessive for the width of the reinstated path.

The use of waste in the construction of the path itself could be considered as a recovery activity however this is not the only activity being proposed in this waste recovery plan. The deposit of waste to significantly raise land levels in order for a construction activity to commence is not considered a recovery activity, therefore we do not agree that the minimum amount of waste is proposed to be deposited to achieve the intended benefit.

4) Is the waste being used as a substitute for a non-waste material?

Non waste virgin materials have been suggested as alternatives. However, in order to preserve natural resources the operator proposed to import waste materials instead.

No other activities which would not involve the deposit of waste have been considered, such as a bridge across the water filled quarry, which would achieve the same end benefit of reinstating the path to its original location."

20. The refusal was appealed. The inquiry into the appeal took place on 7 and 8 August and 18 September 2014.
21. The decision letter was issued on 29 January 2015.

The Decision Letter

22. The inspector identified the main issues in paragraph 2 as follows:

"These are considered to be: (a) whether the proposed activity would be recovery or disposal; (b) whether the whole of the proposed activity would be construction; and (c) in conclusion, whether the proposal meets the requirements or conditions of the standard rules permit applied for."

Under the heading, 'Background', the inspector went on to say that about 69,581 tonnes of material would be needed to reinstate footpath 51 as proposed.

23. He continued under the subheading 'Recovery and Disposal':

"6. Article 3 ('Art. 3') of Directive 2008/98/EC on waste and repealing certain Directives provides definitions that include Art. 3(15) which states recovery to mean '…any operation the principal result of which is waste serving a useful purpose by replacing other materials which would otherwise have been used to fulfil that function, or waste being prepared to fulfil that function, in the plant or in the wider economy…'. This definition provides the key test in this case.

7. Attention has also been drawn to paragraphs 3 and 69 of the preceding Abfall Service AG (ASA) v Bundesminister für Umwelt, Jugend und Familie – Case C-6/00, which confirm that the fourth recital of the Directive states that within the context of the above definition, the recovery of waste and the use of recovered materials should be encouraged to conserve natural materials.

8. Given the Main Issues identified above, there is a central question in this case, which is, would the principal result of the reinstatement of Footpath 51 at Methley Quarry by backfilling with inert waste be that such waste will serve a useful purpose by replacing other materials that would otherwise have been used to fulfil that function."

The inspector dealt with the interested party's guidance note EPR 13. He then analysed the article 3(15) test as follows:

"22. The Art. 3(15) test and its context are described above.

23. Leeds City Council has confirmed its objectives for the restoration of the quarry to include significant biodiversity enhancement and the reinstatement of the Footpath, with the planning decision notice referring to inert tipping. These objectives are discussed in a City Council letter, dated 14 November 2006, which also seeks restoration proposals to provide additional public access, possibly around at least one of the water bodies to be created.

24. Annex II of Directive 2008/98/EC provides examples of Recovery Operations which include R 10 Land treatment resulting in benefit to agriculture or ecological improvement, with Art. 3(15) highlighting that this is not an exhaustive list. Reinstatement of the Footpath with waste would not only be beneficial to the use of the public right of way, it would provide environmental interest through biodiversity enhancement of the quarried area and the Footpath would enable this to be enjoyed.

25. The EA's Recovery v Disposal Advice Record (RDAR), dated 25 February 2013, notes the WRP to identify a possible source of virgin material. It is the appellant's view that: to ask whether alternatives had been sought for the Footpath reinstatement is to ask the wrong question, which should be whether the use of waste for the proposed function would be useful in place of non-waste materials; and, alternative approaches could threaten the objectives of the restoration. However, the EA's consideration of alternatives sought to identify how likely the replacement of non-waste material (which is the 'useful purpose') would be.

26. Consideration of alternatives in this context does not suggest that a function should not be carried out at all, or that some other function should be carried out instead. It does provide an indication of: the potential for alternative approaches to be explored; and, how likely alternative forms of land bridge would be, and therefore whether waste would be replacing it.

27. Alternative approaches to that approved by the planning permission would include complete infilling of the quarry, but that is not the stated and approved objective for the restoration of the site and the Footpath. A modified landform that includes a bridge structure, or that would necessitate the permanent diversion of the Footpath, would require the approved restoration to be changed. It has not been shown that these alternative approaches would be likely to cause a significant reduction in the ecological and recreational benefits sought from restoration of the quarry.

28. It is the EA's case that, while the reinstatement of the quarried section of the Footpath could be carried out using materials other than waste, the financial cost of such works would result in it being unlikely that it would be done in the same manner and proportion as the approved scheme. Reinstating the footpath by backfilling with non-waste material would be a costly exercise. Although the use of non-waste material has been considered by the appellant company and shown to be financially viable, it would be in the company's interest to reduce costs.

29. Inquiry document 6 confirms the range and relative scale of costs that would be expected to be incurred during restoration of the site/reinstatement of the Footpath. External fill would be a significant proportion of the expenditure. If there were to be a need to use non-waste material to complete the restoration works, this would reasonably be expected to cause the site's restoration to be revisited, with consideration given to all feasible options that may cost less than the importation of non-waste fill material. Indeed as noted above, only one example of non-waste restoration was referred to.

30. Whether the competent authority would permanently divert the Footpath around any restored water body is not known, not is the likely extent of opposition to such a diversion, or any local planning authority's decision regarding a variation to the approved quarry restoration. Despite these significant areas of doubt, the evidence in this case confirms it to be very likely that these alternative approaches would be sought if non-waste materials would otherwise have to be used for the reinstatement of the footpath. Accordingly, in such circumstances reinstating the Footpath by using waste would not be serving a useful purpose by replacing other materials that would otherwise have been used to fulfil that function."

24. The inspector dealt with whether the proposal was construction and concluded that the second reason for refusal was not substantiated.
25. The first reason for refusal was independent and not dependent on the second. The inspector then concluded:

"34. It is evident that at the time of the inquiry EPR 13 had the potential to lead EA officers to an approach, and to matters, that are not tightly aligned with the test within Art. 3(15). Nevertheless, EPR 13 does not alter the legal test within Art. 3(15), nor has it been shown that it seeks to do so.

35. At the heart of this case is whether the reinstatement of the excavated section of the Footpath would be likely to occur if waste were not to be used. The material that once occupied the void has been removed and it is a requirement of the planning permission that the site and Footpath be restored. The appellant's engineering explanation for the scale and design of the proposed land form for the reinstatement of the Footpath has not been shown to be inappropriate, and is agreed within the Statement of Common Ground.

36. Both the scale of the landform, and the resulting cost of using non-waste materials, would make it likely that alternative approaches would be considered for the reinstatement of the Footpath. These approaches would reasonably be expected to include the redesign of the proposed landform and its construction, which could include the use of a footbridge or permanent diversion of the footpath.

37. The introductory note for standard rules SR2010No8_100Kte indicates that they apply to construction work, and section 2 of the rules confirms that the Operations must involve 'permitted activities' that are specified forms of recovery. The operation described in the application has been shown to be an act of construction. However, and following consideration of all material in this case, for the reasons above it has not been demonstrated that the operations would be an act of 'recovery' within the terms of Art. 3(15) to comply with the standard rules applied for. Accordingly, the appeal should be dismissed."

Procedural History

26. The claim was issued on 11 March 2015.
27. Permission was granted by Stewart J on 29 April 2015. Expedition was ordered.

The Issues

28. The decision is challenged on eleven grounds. Mr Jones QC, for the claimant, accepts that the issue of interpretation of article 3(15) is central to the determination of the challenge but maintains that all of the other grounds are free standing albeit that there is some overlap between them.
29. Article 3(15) of the WFD states that:

"…'recovery' means any operation the principal result of which is waste serving a useful purpose by replacing other materials which would otherwise have been used to fulfil a particular function, or waste being prepared to fulfil that function, in the plant or in the wider economy. Annex II sets out a non-exhaustive list of recovery operations…"

30. The defendant and interested party contend that the issues are shorter. They are as follows:

i) whether the inspector was correct in law to ask himself the following question: if it was not possible to use waste for the reinstatement operation whether the operation would still take place but using non-waste material?

ii) if the answer to that is yes, was the inspector, in answering that question, required to assume that the backfilling operation would take place in any event, given that it was necessary for the post-quarrying reinstatement of the footpath on its original route, as required by a condition of the planning permission under which the quarrying took place?

If the inspector made no error of law in relation to those questions was his factual finding that if the claimant was not permitted to use waste for the backfilling operation, then on the balance of probabilities the operation would not take place (and the planning permission would be varied to as to permit an alternative option to be pursued) reasonably open to him on the evidence?

31. Given the full submissions made by Mr Jones I propose to use his eleven grounds as a structure for the rest of this judgment. Against that background I turn to the central issue.

Central Issue: Was the inspector correct in his interpretation of article 3(15) of the Waste Framework Directive?

32. The claimant submits that the WFD is to be interpreted in a purposive way. The relevant recitals which assist in interpreting the WFD are 6, 8, 19 and 28.
33. Further, annex II of the WFD contains a non-exhaustive list of recovery operations. The claimant submits that its proposed operation is within annex II as R10. That reads:

"Land treatment resulting in benefit to agriculture or ecological improvement."

34. If it is established that the operation is within that description, that is definitive that the operation would be a recovery operation.
35. If the claimant's operation is not within R10 its operation may still be a recovery operation if it satisfies the test set within article 3(15). That does not have any of the criteria used by the interested party in its guidance note. Article 3(15) is trying to encourage people to reduce waste and to reduce waste material. It is important to be aware of sham operations when considering the WFD but that is not the case in relation to what the claimant is proposing nor is it suggested that it is.
36. The claimant submits that whilst the inspector asked himself the right question at the beginning of his decision (in paragraph 8) he erred by the end of the decision letter (at paragraph 35) when he applied a quite different and erroneous test. That meant that he asked himself the wrong question and erred in law.
37. The "function" was to reinstate the footpath; that was required under the planning permission. The fact that it was required under the planning permission means that it is impossible to argue that the reinstatement of the footpath is not a bona fide or genuine function under the WFD.
38. In the circumstances it is wrong for the inspector to speculate about whether "the function" would be carried out. Under the planning permission it had to be. The claimant submitted that the planning permission was part of the factual matrix to be looked at in considering whether the benefit, namely, the conservation of natural resources through the use of waste was a sham. The planning permission required the restoration of the footpath to be carried out as a particular function as part of the approved restoration scheme. The inspector was, therefore, wrong to reject the appeal on the basis that the "function" might not happen.
39. Further, the inspector's consideration of alternative approaches which were:

i) construction of a bridge across the excavated void;

ii) permanent diversion of footpath 51;

iii) filling in of the whole quarry void with waste material,

and his assessment of whether they would be able to recreate "the function" was flawed. He ignored the fact that the reinstatement of the footpath through the restored site was a necessary requirement of the planning permission.

40. In any event a bridge would provide no separation between the two wetland areas and no habitat or ecological improvement. But, even if it did, the proposal would be replacing non-waste materials which otherwise would be used included the bridge piers which the inspector referred to.
41. A permanent diversion of the footpath would not reinstate it as required under the planning permission nor produce the ecological benefits identified by the inspector.
42. Filling the whole quarry with waste would not secure any wetland habitat creation at all and plainly would not be acceptable to the local planning authority.
43. The error of the inspector was to take into account alternative approaches to the "function" of the restoration of the footpath and the restoration of the quarry as required by the planning permission. Thus, the so called alternatives were not alternatives to the article 3(15) function. They were ex post facto suggestions, unsubstantiated by evidence, of alternative functions.
44. The defendant submits that paragraphs 29 and 30 of the decision letter encapsulate the key reasoning on the part of the inspector. They are set out above.
45. Those paragraphs, Mr Bates on behalf of the defendant submits, show that if it is not possible to use waste a number of alternatives might be possible including a variation of the planning permission. That would involve an exercise on the part of the inspector described by the defendant as the "hypothetical counterfactual situation question". Having carried out that exercise the inspector concluded that it was more likely than not that the claimant would use alternative ways to complete the function if it could not restore the site using the waste as proposed. On the basis that it was unlikely that non-waste material would be used it was reasonable for the inspector to consider alternative options. It was for the parties to present their evidence on that. It was for the claimant to show that non-waste material would be used. It was important to note the wording of the latter part of paragraph 24 set out above.
46. On the interpretation of the WFD the defendant submits that recitals 6, 8 and 19 are relevant. They all focus on conserving natural resources.
47. Article 3(15) contains a concept of useful purpose. The purpose is substitution of natural resources with waste materials so as to conserve the natural resources.
48. The most natural categorisation for what the claimant proposed was in annex I of the WFD which dealt with disposal operations. The relevant paragraphs are paragraph D1 - "deposit into or onto land (e.g. landfill etc.)" and, to a lesser extent, D2 - "land treatment (e.g. biodegradation of liquid or sludgy discards in soils etc.)" Land treatment means changing the condition of the land.
49. R10, in annex II, which the claimant relies upon is about changing the composition of the land as it begins with "land treatment resulting in…" In this case it is impossible to say that what was proposed was within R10. If it is the case that the activity could be within either annex I or annex II of the WFD then the decision maker would have to revert to article 3(15) to determine which it was as recovery and disposal operations were mutually exclusive.
50. The defendant relies upon the judgment of the European Court in Case C-6/00 Abfall Service AG (ASA) v Bundesminister für Umwelt, Jugend und Familie [2002] ECR I-01961, [68] to [69]:

"68. It must also be noted that, as the Advocate General has explained at paragraph 84 of his Opinion, it does not follow from Article 3(1)(b) or from any other provision of the Directive that the hazardous or non-hazardous nature of the waste is, of itself, a relevant criterion for assessing whether a waste treatment operation must be classified as 'recovery' within the meaning of Article 1(f) of the Directive.

69. However, it does follow from Article 3(1)(b) and the fourth recital of the Directive that the essential characteristic of a waste recovery operation is that its principal objective is that the waste serve a useful purpose in replacing other materials which would have had to be used for that purpose, thereby conserving natural resources."

51. Paragraph 68 of the judgment endorses the paragraph 84 of the opinion of the Advocate General. Of importance also within the Opinion are paragraphs 85 to 87. They emphasise that it is important to read the WFD understanding its purpose. The claimant's contention that the WFD has to be read considering its genuine purpose i.e. that the operation is not a sham is not what the Advocate General is saying. He was asking whether the material was genuinely being used for a substitution purpose.
52. The defendant submits that the Court of Justice's approach was consistent with its decisions in earlier cases such as Case C-458/00 Commission v Luxembourg [2003] ECR I-1553.
53. The fundamental question is what would be substituted in the place of a non-waste energy resource?
54. That has to be determined on the facts of an individual case to decide whether or not the use of waste for the quarry backfilling would actually contribute to "conserving natural resources" by replacing other non-waste materials that would otherwise have been used.
55. The evidence before the inspector was that it was rare for non-waste materials to be imported to a quarry site and used for backfilling due to cost^[1]. Consequently the fact that a quarry site operator was proposing to carry out a backfilling operation using waste did not necessarily mean that the operation would still be carried out if it were not possible to use waste for that function.
56. The fact that the planning permission for a quarrying operation included a condition that required the reinstatement of the footpath on its original route did not, therefore, lead inevitably to a conclusion that backfilling would inevitably be carried out if waste could not be used. Commercial realities may lead the claimant to seek to vary the planning permission.
57. The inspector was right to ask himself whether, on the basis of his assessment of the facts, in circumstances where it was not possible to use waste the operation would still be carried out but using non-waste materials. The exploration of that question was the "hypothetical counterfactual situation"; would backfilling with imported non-waste materials still take place or is it more likely that the backfilling operation would not take place at all?
58. The inspector, therefore, asked the right question.
59. The interested party adopts the submissions of the defendant and submits that the issue of whether the operation was waste disposal or waste recovery depends on whether the operation fell within the definition of recovery in article 3 (15) of the WFD.
60. The definition of "recovery" requires the decision maker to have regard to what would otherwise happen in the event that waste could not be used to fulfil the operation in question. If the function that the waste would fulfil would be otherwise fulfilled to the same extent by non-waste materials then the operation would be recovery. If the operation would not take place at all or would, but not to the same extent, then the operation is not recovery.
61. It is for the applicant for the environmental permit to make good his case on the facts that his proposed activity is recovery, as opposed to there being a presumption that it is unless the interested party can prove otherwise. The onus of proof is upon the applicant for the permit to demonstrate that the function which the waste will fulfil would in fact be otherwise fulfilled to the same extent by non-waste materials.
62. Whether the onus of proof is discharged on the facts of any particular case is an evaluative judgment for the decision maker and that exercise of judgment may only be impugned in court on Wednesbury grounds.

Discussion and Conclusions

63. It is clearly relevant to interpret the WFD in a purposive manner. Of assistance in that approach are the relevant recitals to it. The relevant recitals here are 6, 8, 19 and 28. They read:

"6. The first objective of any waste policy should be to minimise the negative effects of the generation and management of waste on human health and the environment. Waste policy should also aim at reducing the use of resources, and favour the practical application of the waste hierarchy.

…

8. It is therefore necessary to revise Directive 2006/12/EC in order to clarify key concepts such as the definitions of waste, recovery and disposal, to strengthen the measures that must be taken in regard to waste prevention, to introduce an approach that takes into account the whole life-cycle of products and materials and not only the waste phase, and to focus on reducing the environmental impacts of waste generation and waste management, thereby strengthening the economic value of waste. Furthermore, the recovery of waste and the use of recovered materials should be encouraged in order to conserve natural resources. In the interests of clarity and readability, Directive 2006/12/EC should be repealed and replaced by a new directive.

…

19. The definitions of recovery and disposal need to be modified in order to ensure a clear distinction between the two concepts, based on a genuine difference in environmental impact through the substitution of natural resources in the economy and recognising the potential benefits to the environment and human health of using waste as a resource. In addition, guidelines may be developed in order to clarify cases where this distinction is difficult to apply in practice or where the classification of the activity as recovery does not match the real environmental impact of the operation.

…

28. This Directive should help move the EU closer to a 'recycling society', seeking to avoid waste generation and to use waste as a resource. In particular, the Sixth Community Environment Action Programme calls for measures aimed at ensuring the source separation, collection and recycling of priority waste streams. In line with that objective and as a means to facilitating or improving its recovery potential, waste should be separately collected if technically, environmentally and economically practicable, before undergoing recovery operations that deliver the best overall environmental outcome. Member States should encourage the separation of hazardous compounds from waste streams if necessary to achieve environmentally sound management."

64. Article 3(15) I have set out above, as also I have set out the relevant parts of annex I and annex II of the WFD.
65. Although the case of Abfall (supra) was dealing with an earlier version of the WFD the material parts are unchanged. In considering the central characteristics of a waste recovery operation it is worth citing from paragraph 69 of that judgment:

"69. However, it does follow from Article 3(1)(b) and the fourth recital of the Directive that the essential characteristic of a waste recovery operation is that its principal objective is that the waste serve a useful purpose in replacing other materials which would have had to be used for that purpose, thereby conserving natural resources.

70. It is for the national judge to apply that criterion in the present case in order to classify the deposit of the waste at issue in a disused mine as either a disposal operation or a recovery operation.

66. Earlier the court had referred to the Advocate General's opinion. He said at [86] and [87]:

"86. In my view the test of the overriding purpose of an operation is the correct criterion for determining whether that operation should be classified as disposal or recovery. The decisive question is whether the waste is used - or re-used - for a genuine purpose. Put another way, if waste were not available for a given operation, would that operation none the less be carried out using some other material? Applying that criterion to the case of a deposit of waste to fill hollow spaces in a disused mine, it would need to be determined whether, in the absence of that waste, those responsible for the mine would have had to arrange for the mine to be filled with other material for a purpose independent of storing the waste, for example for safety or technical reasons to do with the mine itself.

87. That test seems to me best to reflect the scheme of the Directive; it also has the merit of simplicity. It moreover accommodates the criteria of the suitability of the waste for the operation and whether the use of waste spares natural resources without making either of those tests decisive in itself. Thus if the operation - for example, filling hollow spaces in a disused mine - was necessary for safety or technical reasons, one would clearly expect the waste used to be particularly suitable for that operation because of its specific properties. That in turn would suggest that if the waste had not been delivered, another substance which shared those properties would have been needed, which would suggest that the operation was recovery rather than disposal. However, whether that was the case would need to be verified: the mere fact that a disused mine is filled with waste which happens to be suitable for that purpose would not be sufficient to categorise the operation as recovery if there was no independent need for that operation."

67. Likewise in Commission v Luxembourg (supra) the court considered the essential characteristics of waste recovery operation in a similar way.
68. From that jurisprudence the correct approach to interpretation of the WFD for this case appears to me to involve the consideration of:

i) Whether the proposed operation is within R10 of annex II of the WFD as the claimant contends?

ii) If not, or if it is uncertain whether the proposed operation is within R10 of annex II, is the proposed operation under article 3(15) WFD?

69. The wording of R10 in annex II of the WFD involves consideration of two stages. First, land treatment and, second, a resultant ecological improvement. It is agreed here that there will be ecological improvement as a result of the operations carried out by the claimant but that alone is not enough. What is involved, under the waste recovery plan, is the deposit of waste. The question then is whether that is land treatment?
70. On day two of the hearing, and in his reply, Mr Jones QC relied upon Case C-103/02 Commission v Italy [2004] ECR I-09127. He submitted that established that the deposit of solid waste upon landfill is land treatment.
71. The defendant contended that the judgment does not say that the deposit of waste is land treatment. The defendant places reliance on [60] and [62] of the judgment which she contends are against the claimant.
72. The relevant part of the judgment is in the findings of the court at [60] to [65].

"60. The Court notes that it follows from the Commission's reply that the Commission is maintaining its complaint only as regards the use of waste and drilling sludge corresponding to technical standards 7.14 and 7.15 of the Decree. The use of such waste is not, in the Commission's view, a recovery operation but rather a disposal operation.

61. The Commission does not state the precise reason why it is maintaining its plea as regards that waste, but confines itself to indicating that it contains very high levels of hydrocarbons or diesel oil or oil which is slightly toxic. It thus seems to consider that the waste in question contains hazardous substances which preclude its being used for recovery purposes.

62. The Court has held, however, that the hazardous or non-hazardous nature of the waste is not, of itself, a relevant criterion for assessing whether a waste treatment operation must be classified as 'recovery' within the meaning of Article 1(f) of Directive 75/442. The essential characteristic of a waste recovery operation is that its principal objective is that the waste serve a useful purpose in replacing other materials which would have had to be used for that purpose, thereby conserving natural resources (Case C-6/00 ASA [2002] ECR I-1961, paragraphs 68 and 69).

63. It follows that the mere fact that the waste in question contains high quantities of hydrocarbons and diesel oil or oil which is slightly toxic does not preclude its being used for recovery purposes.

64. Moreover, as the Advocate General stated in point 36 of his Opinion, the Commission has admitted that landfill covering may be considered to be a recovery operation inter alia for the purposes of technical standard 4.4. The activities referred to in technical standards 7.14 and 7.15 are described in a manner identical or almost identical to such operations.

65. It must therefore be held that the Commission has not shown that the Italian Republic incorrectly classified waste disposal operations as waste recovery operations and the third plea must be rejected in its entirety."

73. Point 36 in the Opinion of the Advocate General reads:

"36. Point 7.14 of Annex 1 to the disputed decree provides for the re-use of waste in cement works, for the purpose of environmental restoration, if need be after desalination, or for the purpose of solid urban waste landfill cover. The waste to which point 7.15 refers may be re-used in the brick-making industry, to produce expanded clay, by cement works, for environmental restoration if need be after dehydration and desalination, or as solid urban waste landfill cover. The Commission has admitted that landfill covering may be considered to be a recovery operation for the purposes of points 4.4.3(g), 11.2.3(e), 12.1.3(g), 12.3.3(i) and 12.4.3(g) of Annex 1 to the disputed decree. However, the landfill covering operations described at points 7.14 and 7.15 of the annex are strictly identical to those operations. It is therefore clear that the Commission has not proved that the waste reclamation operations envisaged by points 7.14 and 7.15 of Annex 1 to the disputed decree could not be considered to be recovery operations within the meaning of Directive 75/442."

74. Before the Advocate General the Commission had contended that the operations were recovery because they included the re-use of certain waste and environmental recovery included the restoration of areas [AG32]. Initially the Commission applied a different classification which was that landfill covering amounted to a disposal operation. None the less, in reply, in light of the ASA^[2] judgment, the Commission admitted that certain morphological remodelling operations and certain landfill cover operations contemplated by article 5 of the disputed decree could be considered to be recovery operations. In order to conclude that an operation amounts to waste recovery it needed to be determined whether "its principal objective was that waste serves a useful purpose in replacing other materials which would have had to be used for that purpose, thereby conserving natural resources" [AG35]. As the Commission had admitted that landfill covering may be considered to be recovery operation it had not proved that the waste reclamation operations envisaged in that case could not be considered to be recovery operations [AG36].
75. In the ECJ Italy argued that "landfill covering" was not a disposal operation but rather a rehabilitation activity in the sense of that term and that it was like environmental recovery. The Commission maintained that, although certain morphological remodelling measures may be viewed as within annex II the use of waste and drilling sludge with slightly toxic components could not be described as recovery.
76. The court found that the Commission was relying on the composition of waste, namely, when it contained hazardous substances, to preclude it from being used for recovery purposes. It held that the nature of the waste was not, in itself, a relevant criterion. The essential characteristic was whether the waste served a useful purpose in replacing other materials which would have been used for that purpose.
77. On a true reading I cannot regard Commission v Italy then as authority for the claimant's submission that landfill covering in all circumstances will be a recovery operation. As the ECJ said whether it is, is to be judged by whether the operation fulfils the essential characteristic as defined in [62]. That is consistent also with Abfall (supra) and its judgment that the nature of the operation is to be judged on a case by case basis.
78. Accordingly, I do not regard the classification of the proposed operations as clearly within paragraph R10 of annex II. What is proposed may be a recovery operation but that is not clear. It is, therefore, a judgment to be reached on the facts of the individual case and against article 3(15) WFD.
79. Article 3(15), in my judgment, has the clear objective of securing the conservation of natural resources by the use of waste instead of the natural resource thus enabling the natural resource to be conserved for more beneficial use elsewhere. In other words, the useful purpose of the waste is in its substitution of the natural resource which would otherwise have been used in a particular function. As part of that substitution exercise the waste used would have to be proportionate to the natural resource which the waste was replacing for it fulfil its function in accordance with the WFD.
80. I agree with the defendant that the genuineness of the use is in the ability of the waste to carry out the function of substitution for the natural material. Whilst it could be said that is similar to the claimant's submission that the decision maker has to be alert to sham utilisation and I accept that that is a material consideration it is not, however, the fundamental purpose of the article.
81. The interpretation set out is entirely consistent, in particular, with recital 19 of WFD but also with the other recitals 6, 8 and 28 relied upon.
82. As to consideration of alternatives the Advocate General's opinion in Abfall at [86] envisages that there will be an exploration of alternatives to waste as part of a consideration of whether the operation would be carried out using some other material. The inspector's discussion in his decision letter of alternatives [27] to [30] is entirely consistent with that approach.
83. The inspector considered, first, whether the alternative approaches would be likely to cause a significant reduction in the ecological and recreational benefits sought from the restoration of the quarry and concluded, on the evidence before him, that there was nothing to demonstrate that was the case [27]. The necessary implication of the finding is that there were alternative ways of fulfilling the local planning authority's aims for restoration of the site.
84. In carrying out that exercise the inspector had regard to the commercial realities so as to be able to evaluate whether what was proposed was fanciful or whether there was a real possibility of it occurring. He concluded that the bridge structure had not been demonstrated to be "prohibitively expensive" [27]. He came to that conclusion on what I was told was the unchallenged evidence of Mr Titman, expert witness for the claimant. The inspector was under no obligation to accept the evidence Mr Titman if he judged it was lacking. On this issue Mr Titman's proof said:

"4.20 It is stated in the reasons for refusal that 'No other activities which would not involve the deposit of waste have been considered, such as a bridge across the water filled quarry…'. This is frankly absurd. There is no obligation to root around for alternatives, particularly, when this is an option that was not even suggested by the EA to LCC during the planning process. Furthermore, (i) Planning permission for a bridge does not exist; (ii) the costs of constructing a bridge would be prohibitively expensive and the use of worked materials and the energy consumption to manufacture and maintain them would be far less sustainable accordingly; (iii) the EA has mis-stated what the 'end benefit' is. The 'end benefit' is that which the Town and Country Planning process has established it to be, namely the reinstatement of the path as an actual path on solid ground in an agricultural context albeit with adjacent areas of water; and (iv) it is unclear to me and I understand that is questionable as a matter of law whether the provision of a bridge would fall within the Footpath Order in any event. In my experience where a footpath on solid ground is considered for reinstatement or replacement by a footpath on a bridge this is given careful and detailed consideration with particular respect to the design and maintenance provisions during the planning application and footpath diversion application stages. No consideration was given whatsoever to this option during the planning application or footpath diversion application stages as there was no suggestion from anyone that it would be a preferable solution to a footpath on solid ground which would be stable, durable and low maintenance."

85. There was no transparent evidence base for Mr Titman's statement on the cost of a bridge. Whilst his evidence on its cost was doubtless based upon his extensive experience, without some form of empirical evidence in support, the inspector was under no obligation to accept it.
86. The inspector went on to conclude that commercial considerations would mean that even though the claimant had shown that it would be financially viable to backfill with non-waste material it would be in the claimant's interest to reduce costs [28]. Again, he was entitled to come to that conclusion on the evidence that he heard at the inquiry and being cognisant of the commercial realities of quarry operations.
87. His conclusion then that if there was a need to use non-waste material to complete the restoration works that would trigger a reconsideration by the claimant of how the restoration was to be carried out was one that was justified in the circumstances of the case. He had already noted in [17] that

"Suitable non-waste materials could include: low grade primary aggregate from another of the company's quarries; low grade primary fill materials, such as clay; and, low grade recycled aggregate. Mr Titman highlighted that his professional experience in the minerals industry had involved him working on over one hundred quarries. He would also be aware of other mineral sites. Despite this and the experience of other witnesses at the inquiry, only one quarry was known to have been restored with non-waste material. This involved 130,000 tonnes of crushed scalpings taken from Leicestershire for quarry restoration in Staffordshire."

That was supportive of his finding of the likelihood of the claimant proceeding with non-waste material without at the very least exploring other alternative options [30]. In reaching that conclusion the inspector was carrying out a permissible exercise under article 3(15) WFD by examining what "would otherwise" be likely.

88. As the claimant submits the planning permission was, and is, unchallenged. It was, therefore, entirely valid and the proper starting point for an examination by the inspector of alternative options. However, in an examination of alternatives the planning permission is not necessarily the end point or indeed determinative of the position under the environmental permitting regime. I regard the claimant's approach as too narrow and reject it.
89. The planning permission requires the reinstatement of footpath 51 by virtue of condition 41. The condition was imposed having satisfied the Newbury tests. But it is entirely possible for an application to be made to vary the conditions imposed upon the planning permission under section 73 or 73A of the Town and Country Planning Act 1990. That would be well known to the inspector as a qualified planner. The prospects of success of such an application are a different matter and may vary significantly as between the alternatives. The three alternatives considered here, namely, the infilling of the void without restoration, the construction of a bridge over the wetlands and the permanent diversion of footpath 51 were all part of a legitimate examination of alternatives required under the environmental permitting regime. It has to be remembered that the inspector was determining a refusal of an environmental permit against a different legislative framework to that with which he would grapple in the determination of a planning application. They are two different processes but that does not mean that in determining one the decision maker has to close his mind to the existence of the other. In my judgment, he is entitled to take the existence of the other statutory regime into account.
90. It is apparent from correspondence from Leeds City Council in a letter of 14 November 2006 (produced to the inquiry) from Clive Saul, the Principal Minerals Planner, that the City Council was concerned that the restoration proposals put forward by the claimant maximise the restoration potential for the area. The first submitted scheme failed to do so. The letter continued:

"Both Lafarge and the Estate have benefited from the land at Methley for several decades. If permission were to be granted for the Dunford House extension, it is considered that the phase 10 area could provide an idea opportunity for Lafarge and the Estate to give something back to the local community, by providing an area of environmental interest or a nature reserve.

Whereas the other lakes on site are relatively remote, this area is more accessible to the general public. We would therefore encourage Lafarge to put forward a more 'imaginative' restoration scheme, catering for several different types of habitat, including reedbeds, wetlands, low lying grassland/seasonal wetlands, gently sloping shallows, islands etc. A public footpath already runs through the centre of the proposed site, giving the public reasonable access. The Council would also like to see this public access expanded, possibly providing a circuitous route around at least one of the lakes and back up through what is now the processing area into Coney Moor Wood. I would also encourage the provision of some form of interpretation as part of the scheme. If a good scheme could be formulated and properly implemented and managed, this could potentially create and excellent example of quarry restoration which I am sure would reflect well upon both the Estate and Lafarge."

91. As Mr Jones submitted it is evident from that letter that the City Council was looking for a scheme that would enhance public access and be more imaginative than the earlier restoration submissions. It was accepted by all parties that the prospect of the excavated void being in-filled without restoration being acceptable to Leeds City Council was so remote as to be discounted as a material consideration. So far as the other two options are concerned, namely the bridge and the permanent diversion, the issue there would be whether they were material considerations to which weight should be applied or whether they were so remote as not to be a material consideration. Absent any evidence on that from Leeds City Council each of those would be matters of judgment for the decision maker. The legal issue is whether it was correct for the inspector to embark upon and carry out the exercise of considering alternatives. In my judgment he was. As an approach not only was it entirely consistent with the opinion of the Advocate General in Abfall [86] it was consistent also with proper reading of article 3(15).
92. The regulatory guidance note relied upon by the interested party, EPR 13, can only ever represent the approach of the interested party. It sets out in a transparent way the questions that the interested party would ask in carrying out an assessment of the waste recovery plan. That is its process. I was told during the hearing that it is currently under review. Whatever its status it does not affect the legal determination.
93. It follows that upon the central issue I find that the claimant's case is not made out.

Ground Two: Did the inspector fail to take into account the restoration requirements of the planning permission or explain why he did not consider the requirements to be relevant to his determination?

94. The claimant contends that, notwithstanding it drew the inspector's express attention to the Newbury requirements for a planning condition, he erred in law in failing to take into account the fact that the restoration requirements of the planning permission were, as a matter of law:

i) necessary;

ii) relevant to planning;

iii) relevant to the development to be permitted;

iv) enforceable;

v) precise; and

vi) reasonable in all other respects.

The starting point had to be that the condition was necessary. At no stage did the interested party contend that the condition failed the legal tests or policy tests in the then relevant circular 11/95. The inspector at no stage explained why he did not consider the legal tests relevant to his determination.

95. The defendant submits that the claimant's approach has two arguments:

i) Legal reality; and

ii) Weight.

96. The claimant's submission that the reality was that the planning permission had to be complied with by a particular date was the wrong question. The inspector had to consider the factual reality. If his judgment was that waste could not be used the next judgment was would non-waste have been used? That was a factual question.
97. In paragraph 30 the inspector recorded that he could not be certain but thought that non-waste would not be used. He then went on to consider alternatives to the extant planning permission on the basis that the permission could be varied. It was wrong to say that the inspector should have ignored those alternatives and proceeded on the basis of the legal reality as the claimant submits.
98. Issues of weight are entirely for the decision maker.

Discussion and Conclusions

99. It is quite clear from reading the decision letter as a whole that the inspector was alive to the requirements of the planning permission. In paragraphs 19 to 21 he set out the planning background.

"19. In 2008, the appellant carried out a review of on-going restoration costs for Methley Quarry that considered payment for external (non-waste) fill for the Dunfold House Extension area, which includes the Footpath. Restoration of the quarry would occur under conditions attached to planning permission ref: 10/05330/FU, with condition 41 requiring this to be in accordance with the Environmental Statement (ES) and approved plan. The ES refers to the use of both inert material and wastes, but in relation to the Footpath reinstatement, ES paragraph 3.5.3 indicates that waste importation will be required. Condition 42 seeks overburden to be spread as a final layer over all deposited waste materials, but the condition is not explicit that only waste is to be used.

20. While the appellant believes the ES section that includes paragraph 3.5.3 was drafted by a transport specialist, rather than someone dealing with waste regulation, it is the ES as written that is the subject of condition 41. Nevertheless, an operator could apply for permission to restore the site without being restricted to the use of waste for the Footpath. In any event, during the inquiry adjournment the minerals planning authority indicated that it would be satisfied with inert restoration materials that are waste or non-waste. On this basis enforcement action in relation to condition 41 due to the use of non-waste materials in footpath reinstatement would seem very unlikely.

21. In this instance, the context of the planning permission, or any variation of it, would require restoration and reinstatement works to be completed to an appropriate standard."

100. Further in paragraph 35 (set out above) the inspector recorded again that it was a requirement of the planning permission that the site and the footpath be restored. He clearly took into account the legal position with regard to the extant planning permission.
101. However, the inspector was not dealing with considerations that would be pertinent in a planning inquiry. He was dealing with whether the application met the requirement for a standard rules environmental permit for recovery purposes. Different considerations therefore applied. What weight he applied in those different circumstances to the planning permission including its conditions was entirely for him as a matter for his judgment. He explained the exercise that he was undertaking. There is no basis for the claimant's submission that the inspector simply ignored the "inconvenient truth".

Ground Three: Whether the inspector erred in law in not holding that the proposed operations were a recovery operation?

102. I have dealt with that issue above under the central issue. As the claimant accepts various of its grounds run into each other.

Ground Four: Whether the inspector erred in law in holding that it was irrelevant that the proposal was to replace non-waste material which had previously supported the footpath in its original location?

103. The claimant relies on paragraph 16 of the decision letter. That says:

"It is suggested that the proposed waste types would be replacing the non-waste materials that formerly created the land bridge for the Footpath. However, this is understood to have been natural ground where a land bridge was created by quarrying around the Footpath. There was no act of construction that placed the material, only the mining that eventually removed all of it. There is no evidence that suggests those materials are not available to fulfil the function of Footpath reinstatement to any significant extent. Therefore, other non-waste materials or waste would be required. In relation to the appeal proposal, the Art. 3(15) test cannot be met on the basis of waste replacing the natural ground that was quarried away, even if some unknown proportion of it remains on-site."

104. The claimant submits that the planning permission permitted the removal of non-waste material so as to create a freestanding land bridge that was to be used by the public. Non-waste material was to be removed only during the last phase of the mineral extraction process. However, removal of the material was only permitted on the basis that it would be replaced by a land bridge and that the footpath had to be replaced in its original location on top of the land bridge.
105. To do that non-waste material which performed the function of supporting the footpath was to be replaced with waste material. It is contended that there could not be a stronger example of waste recovery (rather than waste disposal) than where the waste was used to carry out a function previously carried out by non-waste material.
106. The defendant and the interested party submit that the ground amounts to no more than a disagreement with the inspector's factual conclusion. That was that if it were not possible to use waste material for building the new footpath (including the land bridge) then it is likely that the planning permission would not have required those works to be carried out (whether because those works would not have been specified in the planning permission at the outset or because the planning permission would have been varied where relevant at the claimant's request).
107. The question that the inspector had to answer was whether, in the circumstances where it was not possible to use waste as the building material for the new footpath non-waste would, on the balance of probabilities, have been used. The inspector concluded that non-waste material would not be used in those circumstances and, therefore, permitting the use of waste would not be in replacement of (and thus help to conserve) non-waste materials that would otherwise be used. The fact that non-waste materials were used to support the original footpath (which no longer exists) is logically irrelevant.

Discussion and Conclusions

108. As the defendant and interested party contend permitting the use of waste after the removal of the prior materials was not in replacement of non-waste materials that would otherwise be used. The claimant's submission therefore omits a chapter in the planning history. By reason of the excavation the non-waste material had already been extracted albeit an unknown amount may have been left elsewhere on site. There is, therefore, in my judgment, no basis for saying that the nature of the material prior to excavation being carried out was relevant here as there could be no substitution. The ground would appear to be no more than a disagreement with the inspector on the facts.

Ground Five: Whether if the alternative approaches were material considerations they were viable alternatives?

109. The claimant contends that no evidence was proposed by the interested party in support of the details of the alternative approaches, their likelihood or costs. A witness of the interested party, Mr Folkett, resiled from suggesting that turning the site into a waste landfill site by filling the whole quarry void with waste material was a more desirable option. Indeed, the inspector conceded that whether the competent authority would permanently divert the footpath around the water body was not known and the outcome of any local planning authority's decision was characterised as a significant area of doubt (see paragraph 30).
110. It is further contended that the inspector erred in law and misdirecting himself that there was a requirement for the claimant to demonstrate that a footbridge across some or all of the existing void would be prohibitively expensive, as suggested by paragraph 4.20 on Mr Titman's proof of evidence. There was no such burden on the claimant.
111. The defendant and interested party contend that ground five is a further disagreement with the inspector's factual conclusions and does not disclose any arguable error of law.
112. The inspector was not required to identify any specific alternative approach that would, on the balance of probabilities, be used for restoring the quarry site in circumstances where it would not be possible to use the land bridge. It was sufficient for the inspector to:

i) recognise the existence of various alternative scenarios that might be permitted by the planning authority; and

ii) make his own predictive assessment in the round with the benefit of having heard oral evidence on the matter as to whether it was more likely that the land bridge would or would not be constructed.

113. The inspector weighed up the evidence from different witnesses, including that from Mr Titman with regard to whether or not the construction of a footbridge over the void would be a viable alternative to building a land bridge for the footpath. He was entitled to express the view that Mr Titman had not provided convincing evidence to support his assertion that such an alternative would have been prohibitively expensive.
114. Further, the inspector was correct to regard the burden of proof as being on the claimant to demonstrate that its proposed operation was a "waste recovery" within the meaning of article 3(15) of the WFD.

Discussion and Conclusions

115. Most of this ground overlaps with ground one. I have set out my decision on that above.
116. In considering this ground of claim it is material to scrutinise the burden of proof. In the circumstances of a refusal of an environmental permit, in my judgment, it was for the claimant to demonstrate that its proposals either came within one of the illustrative recovery operations set out under annex II to the WFD or complied with the wording of article 3(15). It follows that the burden was upon the claimant to demonstrate, on the balance of probabilities, that its proposal came within either of those categorisations.
117. It is clear from the decision letter that the inspector evaluated the evidence as a whole and was not convinced by the evidence which had been led on behalf of the claimant. He was quite entitled to come to that conclusion having heard and evaluated the written and oral evidence and observed the witnesses. The issue of adequacy of reasons I deal with under that appropriate ground.

Ground Six: Whether the inspector erred in law when he misdirected himself that there was a burden upon the claimant to demonstrate that the alternative approaches to the proposed reinstatement of the footpath in accordance with the planning permission would not be likely to cause a significant reduction in the ecological and the recreational benefits sought from the restoration of the quarry?

118. The claimant submits that there is a contradiction in the decision letter in paragraph 27 between the beginning and the end of that paragraph. It was wrong for the inspector to suggest that there was a need to show that the alternative approach would be likely to cause a significant diminution in ecological benefits.
119. The defendant submits that the claimant's attempt to elevate the inspector's comment into an approach whereby the claimant was required to satisfy a burden of proof in relation to the question of ecological and recreational benefits was misconceived.

Discussion and Conclusions

120. The inspector was quite entitled having heard all the evidence at the inquiry and having considered the documentation at the inquiry and before it to make the judgment that he did. It was entirely a matter for his judgment to be reached upon the evidence that was submitted at the inquiry.
121. There is nothing in this ground.

Grounds Seven and Eight: Whether the inspector erred in law that the proposal was not a waste recovery operation and whether the inspector would have had to be satisfied that the alternative approaches would have had to succeed or, alternatively, have been likely to succeed?

122. As the claimant accepted in oral argument these issues are subsumed within its earlier arguments. I have dealt with the interpretation of the WFD earlier in this judgment.

Ground Nine: Did the inspector err in his treatment of the Wallasea Island decision?

123. The claimant submits that the inspector needed to form a view as to whether the Wallasea Island decision was in accordance with the requirements of the WFD and, if so, how it related to the Methley Quarry application.
124. The inspector had addressed the Wallasea decision in paragraph 18 of his decision letter. He accepted that that proposal, like the Methley scheme, "would facilitate biodiversity enhancement". As there was a requirement for consistency of decision making between regulatory authorities (see R (Rank) v East Cambridgeshire District Council [2002] 42 EG 159) the inspector should have distinguished between the two schemes. He gave no reasons for his assertion that Wallasea was not directly parallel to the appeal scheme. To say as he did in paragraph 18 that the difference was because of "the nature and scale" of construction works was not a valid reason and did not relate to the test which he was meant to be applying.
125. The defendant submits that the inspector had considered the relevant legal authorities including Abfall and identified the correct question. The right approach was to apply the correct view of the law. It was not relevant to consider the Wallasea decision where there were very different facts.

Discussion and Conclusions

126. The decision letter dealt with the Wallasea Island Wildcoast Project at paragraph 18. That reads:

"Reference has been made to the EA's decision regarding the Wallasea Island Wildcoast Project. The decision document for the project notes that it requires large volumes of material to recreate the ancient wetland landscape of mudflats and saltmarsh, lagoons and pasture. It then continues by noting the activity to be distinguishable from disposal or landfilling of waste, and that non-waste materials could be used, but this would be unlikely given the financial cost. While the EA concluded the Wallasea project would be a recovery operation, given the nature and scale of the construction works, it is not directly comparable to the appeal scheme which would also facilitate biodiversity enhancement. In any event, the appeal scheme falls to be considered against the Art. 3(15) legal test in its own right. Consequently, the Wallasea decision does not set a precedent for the application of legislation (or EPR 13) in this case."

127. The claimant submits that it is of note that the environmental permit to deposit waste for recovery at Wallasea Island was sought by the Royal Society for the Protection of Birds (RSPB) in partnership with the Environment Agency, DEFRA and Crossrail. The decision there was assessed against the interested party's guidance EPR 13 and the conclusion was that the deposit of waste was a recovery operation. There was no suggestion that alternatives had to be considered. The emphasis was on the great benefit from the recovery operation. The claimant then relied on that situation and submitted that Methley Quarry complied more fully with the WFD than Wallasea. The inspector had to grapple with that decision and the claimant's submissions.
128. In the decision on Wallasea Island the interested party went through the same process of judging the application against EPR 13. It answered all of its five questions in the affirmative. Two are of particular relevance, namely, is the minimum amount of waste being used to achieve benefit, and is the waste being used as a substitute for a non-waste material? In response to those questions the interested party said:

"The optimum quantity of the material required is not a simple calculation due to the complexity of the project but we have been involved in providing advice on environmental considerations to ensure the scheme was adequately designed and believe the quantity of material to be appropriate to provide the intended benefit. We do not consider that excessive amounts of waste are being used.

The project is ambitious and requires large volume of materials. Creation of habitats is the sort of operation for which non-waste materials can properly be used. It is a planned engineering project, designed to provide compensatory intertidal habitat which is necessary in order to offset the effects of coastal squeeze upon designated sites. It is distinguishable from disposal or landfilling of waste. We recognise that the financial cost and environmental impact of sourcing raw materials means that using waste instead is the only likely practical way in which the project would proceed. We do not consider that, assessing the proposed project as a whole, including the development in phases, prevents this operation being classified as a recovery operation."

129. Annex II to the decision noted the issue raised by the Mineral Products Association in which, although accepting that the project was an opportunity for the scheme to benefit from the large volumes of waste that would be generated by the Crossrail project, they questioned whether the scheme could be delivered through the use of non-waste materials and, as such, were concerned that the project did not satisfy the Abfall substitution test. The response given by the interested party was that the project met the substitute for non-waste materials criteria as the creation of habitats is a sort of operation for which non-waste materials can properly be used. It is a planned engineering operation distinguishable from those situations where, when considered objectively, disposal or land filling of waste is the primary operation carried out.
130. The Wallasea decision was an inquiry document and footnoted in the decision letter. An informed reader familiar with the arguments, as the recipients of the decision letter were, was able to track the rationale for the decision through. It is right that the inspector was succinct in his reasons for distinguishing the Wallasea decision from that at Methley Quarry but the phrase "scale and nature" alerted the reader sufficiently to the differences between the two projects. At Methley Quarry the operation was regarded primarily as a landfill project to raise the land upon which the footpath was to be reinstated. Whereas the waste used for the construction of the path was a recovery operation, that providing the base for the land bridge was not, so that the use of waste was disproportionate and not the minimum to be used to achieve the intended benefit. The inspector did, therefore distinguish the Wallsea Island project. He had evidence with which to do so in the reason for each decision document produced by the interested party which were before the inquiry. Although his reasoning could have been a bit fuller it was adequate for the decision letter.
131. In any event, as the inspector set out the Methley scheme fell to be determined against article 3(15) in its own right. As such he was satisfied that Wallasea set no precedent. That approach was consistent with jurisprudence referring to the need for such projects to be subject to a case by case assessment.
132. In short, as the claimant had raised the Wallasea Island project as an example of how EPR 13 was interpreted by the interested party the inspector did have to deal with the decision. He did so and found that it was not directly comparable and set out, shortly, why. He then set out that his approach was to consider Methley on its own merits against article 3(15). That approach cannot be faulted.

Grounds Ten and Eleven: Irrationality and Absence of Reasons

133. The claimant did not particularise these grounds any further than the criticisms contained within the individual grounds set out above.
134. I do not need to deal with them further. For reasons set out this was a rational decision with an adequately reasoned decision letter.

Conclusion

135. For the avoidance of any doubt I have taken all of the matters raised in argument into account in reaching my decision.
136. The claim fails. I invite submission on costs and the agreement of a draft order.

Note 1   See paragraph 17 of the decision letter quoted in paragraph 86 of this judgment    [Back]

Note 2   Case C-6/00 [2002] ECR I-1961    [Back]