Leslie Heasman

This Practice Note provides guidance on the definition of waste. In particular it focuses on how interpretation will affect the definition of waste, including what key terms are relevant, how to interpret ‘discard’, looking at deliberate and accidental discard, as well as the intention to discard. The Practice Note also provides information on when there may be a requirement to discard and the effect of transfer to another person. There is also reference to Environment Agency guidance on the definition of waste.

This Practice Note provides guidance on the meaning of waste and disposal operations. It provides details on how disposal is one of the key waste management elements of the Waste (England and Wales) Regulations 2011, SI 2011/988 which refer back to the Waste Framework Directive 2008/98/EC (WFD). This Practice Note also covers the list of non-exhaustive disposal operations covered in the WFD and covers key principles and case law.

This Practice Note provides practical guidance on the end-of-waste status. It refers to the Waste Framework Directive 2008/98/EC (WFD) and implementing and assimilated regulations in England and Wales, setting out end-of-waste criteria, principles and conditions, including specific criteria for certain waste types. It also refers to quality protocols (QPs), self-assessments and end-of-waste submissions to the regulators. The Practice Note includes references to relevant case law and covers recovery operations and their effect on the end-of-waste status.

This Practice Note provides details on the meaning of waste, in particular products and by-products. It provides guidance on the differences between waste and by-products, focussing on production residues, products, by-products, certainty of use, extractive industries, with or without further processing, whether an action is integral to the production process, lawful use and the decision process.

This Practice Note covers the definition of recovery operations and the list of waste recovery operations under the revised Waste Framework Directive 2008/98/EC (WFD). It also covers EU and UK case law on the interpretation of ‘recovery operations’ and the meaning of ‘recycling’. It is part of a series of notes on the meaning of waste. This Practice Note also links to related Brexit content.

Meaning of waste—waste exclusionsWaste Framework Directive 2008/98/EC (WFD) as amended in 2018The Waste (England and Wales) Regulations 2011, SI 2011/988 transposed the requirements of the Waste Framework Directive (WFD) into domestic law. Predecessor Directives were implemented through the various Acts and Regulations, including the following:•the Environmental Protection Act 1990, particularly section 34 dealing with the ‘duty of care’ on those responsible for waste•the Control of Pollution (Amendment) Act 1989 and the Controlled Waste (Registration of Carriers and Seizure of Vehicles) Regulations 1991, SI 1991/1624, dealing with the registration of waste carriers•the Environmental Permitting (England and Wales) Regulations 2016, SI 2016/1154 as amended), dealing with permitting of waste disposal and recovery operations•the Hazardous Waste (England and Wales) Regulations 2005, SI 2005/894 and the Hazardous Waste (Wales) Regulations 2005, SI 2005/1806 (W.138), and Hazardous Waste (England and Wales) (Amendment) Regulations 2016, SI 2016/336 dealing with hazardous waste, and•the Town and Country Planning Act 1990 and the Planning and Compulsory Purchase Act 2004 and subordinate legislation made under those Acts, dealing with waste plansImplementation of the relevant parts of the WFD continues to rely upon most of this legislation, amended where necessary by the Waste (England and Wales) Regulations 2011, SI 2011/988. Three waste exclusionsDetermining what is waste under the WFD is a complex process. See Practice Note: Meaning of waste—what is waste?Some materials are excluded from the scope of the WFD and remain excluded post Brexit.There are three types of exclusion:•Type 1: The exclusions provided in Article 2(1)(a)–2(1)(e) are absolute exclusions in the sense that the exclusion of the specified wastes from the scope of the WFD is not dependent on the wastes being covered by other (Community) legislation•Type 2: The exclusions provided in Article 2(2)(a)–2(2)(d) are dependent exclusions, ie specified wastes are excluded from the scope of the WFD only ‘to the extent that they are covered by other Community legislation’, and•Type 3: The exclusion provided in Article 2(3) is ‘without prejudice to obligations under other relevant Community legislation’. It applies to sediments relocated inside surface waters for certain purposes and if it is proved that the sediments are non-hazardous. This is in a different category from 1 and 2 because its origins are in an amendment to the Environment Council’s Common Position proposed by the European Parliament (ie the exclusion was not proposed by the European Commission or the Member States)In addition, certain categories of waste were specifically regulated by individual Directives which complement the WFD. In cases where the provisions of the 'special legislation' depart from those of the WFD the definitions in the special Directives prevailed. For example, Council Directive 94/62/EC (Packaging Waste Directive) is defined as special legislation vis-a-vis the WFD.For information on the Packaging Waste Directive, see Practice Note: EU Packaging and Packaging Waste Directive 94/62/EC—snapshot.Guidance on waste exclusions is provided by the EA in Guidance: Check if your material is waste. It is also possible to get an opinion from the EA’s definition of waste service upon payment of a fee.CL:AIRE’s voluntary Development Industry Code of Practice on the definition of waste is also useful in respect of soils. In the UK the Waste (England and Wales) Regulations 2011, SI 2011/988 (the 2011 Regulations) transpose these exclusions through regulations 2, 3D, 47, and Schedules 2, 3 and 4.The effect is that ‘waste’ in the 2011 Regulations means anything that is waste within the meaning of Article 3(1) of the WFD, as read with Article 5(1) on by-products, and which is not excluded from the scope of the WFD by Articles 2(1), (2) or (3).Absolute exclusionsThe WFD contains some additional exclusions when compared to the Waste Framework Directive 2006/12/EC (2006 WFD) which address some of the issues raised by CJEU rulings.For guidance on the extent to which judgements fo the European Court of Justice are binding on UK courts, see Practice Note: Assimilated lawExclusionArtComparison with 2006 WFDCommentGaseous effluents emitted into the atmosphere2(1)(a)Same exclusionCouncil Directive 2009/31/EC on the geological storage of carbon dioxide replaced article 2(1)(a) of the 2006 WFD with: gaseous effluents emitted into the atmosphere and carbon dioxide captured and transported for the purposes of geological storage and geologically stored in accordance with Council Directive 2009/31/EC or excluded from the scope of that Directive pursuant to its article 2(2).Land (in situ) including unexcavated contaminated soil and buildings permanently covered with land2(1)(b)New exclusionThis exclusion applies to land, soil and buildings that are in their original position and have not been disturbed, eg through excavation or demolition. It cures that part of the Van de Walle decision, which declared that soil contaminated by hydrocarbons is waste even if it has not been excavated. Contaminated soil is not defined in the WFD. According to the EC guidance, para 2.2.2, a minimum criterion is whether the soil exhibits any of the properties of waste which render it hazardous. National soil legislation may be consulted, eg EPA 1990, Pt IIA. Examples of this exclusion are unexcavated soil beneath a service station, asbestos tiles on a building, a greenfield site.Uncontaminated soil and other naturally occurring material excavated in the course of construction activities where it is certain that the material will be used for the purposes of construction in its natural state on the site from which it was excavated2(1)(c)New exclusionUncontaminated soil relates to virgin soil or equivalent. Other naturally occurring material includes soil, stones, gravel and rock. Man-made material, such as concrete, is not excluded. Certainty of use may be demonstrated through inclusion in construction plans, planning permission conditions etc. This exclusion is a response to the AvestaPolarit decision, which declared that leftover rock and residual sand from mining operations could be classed as waste unless it is lawfully used to fill in mine galleries and there are sufficient guarantees to identify the actual use of the substances for that purpose.Radioactive waste2(1)(d)This wasn't an absolute exclusion under the 2006 WFD, but was excluded to the extent covered by other legislationDecommissioned explosives2(1)(e)This wasn't an absolute exclusion under the 2006 WFD, but was excluded to the extent covered by other legislationFaecal matter (from agriculture or farming, not other faecal matter covered by animal by-products in art 2(2)(b)), straw and other natural non-hazardous agricultural or forestry material used in farming, forestry or for the production of energy from such biomass through processes or methods which do not harm the environment or endanger human health2(1)(f)This wasn't an absolute exclusion under the 2006 WFD, but '...the following agricultural waste: faecal matter and other natural, non‑dangerous substances used in farming' were excluded to the extent covered by other legislationFaecal matter includes faeces and urine excreted by animals in an agricultural or forestry setting. It does not include human faecal matter. In Commission v Spain, the CJEU held that livestock effluent is not waste where it is used as soil fertiliser as part of a lawful practice of spreading on clearly identified land, and its storage is limited to the needs of those spreading operations. This ruling should be considered in light of the exclusions in arts 2(1)(f) and 2(2)(b) of the WFD.Non-hazardous sediments relocated inside surface waters for the purpose of: (a) managing waters and waterways; (b) preventing floods; (c) mitigating the effects of floods and droughts; or (d) land reclamation2(3)New exclusionThis exclusion is 'without prejudice' to obligations under other relevant Community legislation, eg Water Framework Directive 2000/60/EC. According to the EC guidance, para 2.6.2, sediments from dredging are not covered by this exclusion. The exclusion for the purposes of managing waters applies not to the dredging but to the relocation of the sediment.Exclusions where covered by Community legislationThe WFD, art 2(2) excludes certain wastes, but only to the extent they are covered by other 'Community legislation'.In contrast, the 1975 WFD excluded certain wastes where they were covered by 'other legislation' which included both national and Community legislation. The WFD exclusion only applies to Community legislation.The CJEU held that, for the exclusion to apply under the 1975 WFD, 'other legislation' must:•contain 'precise provisions' organising the management of the particular waste•pursue the same objectives as the WFD, and•ensure a level of protection of the environment which is at least equivalent to that resulting from the WFDThe requirement of 'precise provisions' is not met by piecing together a patchwork of miscellaneous provisions, which taken together may achieve similar practical effects to that of the former WFD. For example, in Thames Water precise provisions were not established by piecing together a series of provisions in national legislation, such as:•Water Industry Act 1991•Environmental Protection Act 1990, Pt IIA (EPA 1990) (contaminated land)•EPA 1990, Pt III (statutory nuisances)Arguably the criteria for 'other legislation' would also apply to the WFD exclusion for 'Community legislation'.Exclusion where covered by community legislationArtComparison with 2006 WFDCommentWaste waters2(2)(a)The 2006 WFD excluded 'waste waters, with the exception of waste in liquid form' to the extent covered by other legislationRelevant Community legislation includes the Urban Waste Water Treatment Directive 91/271/EEC (UWWTD) and the Dangerous Substances Directive 2006/11/EC for disposals at sea. In Thames Water, the CJEU found that waste water which 'escapes' from a sewerage network maintained by a statutory sewerage undertaker under the UWWTD is waste and was not excluded from the scope of the directive. The UWWTD was not 'other legislation' because it did not contain precise provisions on the management of waste water which 'escapes' from sewerage networks, nor did it ensure a level of protection which was at least equivalent to the 1975 WFD. The Urban Waste Water Regulations 1994 regulate waste water in England and Wales.Animal by-products (ABP) including processed products covered by EC Regulation 1774/2002 [replaced by a revised ABP Regulation 1069/2009, which came into force on 4 March 2011], except those which are destined for incineration, landfilling or use in a biogas or composting plant.2(2)(b)The 2006 WFD excluded animal carcasses to the extent covered by other legislation, but didn't refer to the ABP RegulationABPs are entire bodies or parts of animals, products of animal origin or other products obtained from animals, which are not intended for human consumption, including oocytes, embryos and semen. ABPs which may be waste are excluded from the WFD unless they are going to be incinerated (which includes co-incineration to produce energy), landfilled, used in a biogas plant (anaerobic digestion) or composted. Catering waste is particularly difficult to determine since it is excluded from the ABP Regulation unless it meets certain conditions. If it doesn't meet those conditions it is not covered by the ABP Regulation and will be covered by the WFD if it falls within the definition of waste (eg where it is waste being incinerated, landfilled or used in a biogas or composting plant). This exclusion does not apply to faecal matter from agriculture and forestry, as this is covered by the exclusion in art 2(1)(f).Animal carcasses: carcasses of animals that have died other than by being slaughtered, including animals killed to eradicate epizootic diseases, and that are disposed of in accordance with Regulation (EC) No 1774/2002 (replaced by a revised ABP Regulation 1069/2009, which came into force on 4 March 2011)2(2)(c)The 2006 WFD excluded animal carcasses to the extent covered by other legislation, but didn't refer to the ABP RegulationAccording to the EA, this exclusion means that entire bodies or parts of animals are excluded from the scope of the WFD if they are disposed of in accordance with the revised ABP Regulation. In Commission v Spain, the CJEU held that carcasses from animals that died on the farm and were not slaughtered for human consumption are animal waste under former Directive 90/667/EEC. Directive 90/667/EEC was held to be 'other legislation' and therefore the animal carcasses were excluded from the 1975 WFD. In KVZ retec, the CJEU interpreted the 'animal carcasses' exclusion strictly. It held that meat-and-bone meal is not covered by the term animal carcasses, since that refers to whole or parts of dead animals that have not undergone any processing capable of altering their inherent nature. This case may have been decided differently if the ABP exclusion had been in force at the time.Mining waste: waste resulting from prospecting, extraction, treatment and storage of mineral resources and the working of quarries covered by the Mining Waste Directive 2006/21/EC2(2)(d) Same exclusion with the addition of section 2 (2) e in the 2018 amends to include substances destined as feed materials. However, the 2006 WFD did not refer to the Mining Waste DirectiveMining waste is regulated by the Environmental Permitting (England and Wales) Regulations 2016, SI 2016/1154.Special legislationThe provisions of individual directives prevail over those in the WFD where they lay down specific rules for particular instances, or rules supplementing those of the WFD, on the management of particular categories of waste. While the WFD itself is no longer directly applicable as legislation in the UK post-Brexit, the principles set out in the following cases around the workings and overlaps of other legislation are still relevant and UK Courts can be expected to pay a great deal of attention to CJEU decisions where relevant to cases before them.In Mayer Parry, the CJEU stated that the Packaging Waste Directive contains specific rules or rules supplementing the 1975 WFD for the management of packaging waste. This Directive is special legislation vis-a-vis the 1975 WFD, and therefore its provisions prevail over those of the 1975 WFD in situations which it specifically seeks to regulate.In AvestaPolarit, the CJEU noted that former Directive 91/157/EEC on batteries and accumulators (now Council Directive 2006/66/EC) and former Directive 91/689/EEC on hazardous waste (now part of the WFD) were adopted on the basis they contained special rules on those categories of waste. The Court explained that the categories of waste that are the subject of individual Directives under Article 2(4) remain subject overall to the WFD, even if individual rules derogating from its provisions are adopted on certain aspects or supplementary rules are adopted with a view to more extensive harmonisation of the management of the waste in question.In Thames Water, CJEU ruled that the UWWTD was not special legislation vis-a-vis the 1975 WFD, in relation to waste water escaping from a sewerage network, since it did not contain any specific provisions for particular instances or supplementing those of Council Directive (EEC) 75/422 on the management of waste water which escaped from a sewerage network.In Commission v Italian Republic No 2, the CJEU ruled that the WFD was not of residual application by comparison with Community and national legislation on food safety. Although some provisions overlap, they remain distinct and there is nothing to suggest that the WFD does not apply in tandem with other legislation.

This Practice Note covers the waste hierarchy, related policies and legislation, and the circumstances that allow departure from the hierarchy. It is part of a series of notes on the meaning of waste. This Practice Note also links to related Brexit content.

This Practice Note provides guidance on waste indicators when assessing the meaning of waste. It focuses on positive waste indicators providing information on production residues, negative economic value, what is commonly regarded as waste, common methods of recovery or disposal, use of the material, perception of the holder, limits on the quantity produced and contamination. Other relevant factors are also considered such as economic value or re-utilisation, the list of wastes, characteristics of the substance or object, impact on the environment and place of storage.

This Practice Note outlines the meaning of waste by referring to the Waste Framework Directive 2008/98/EC as implemented by the Waste (England and Wales) Regulations 2011, SI 2011/988 and other relevant legislation. The Practice Note highlights key issues surrounding interpretation of case law and provides details on relevant guidance for defining waste. It also provides a series of helpful questions to work through when ascertaining if an item is waste.