Case No: 00/7217/W5
00/7218/W5 
Neutral Citation Number: [2001] EWCA Crim 1077
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM HIS HON JUDGE SHAND, 
CROWN COURT, STOKE ON TRENT
Royal Courts of Justice
Strand, London, WC2A 2LL

Friday 4th May 2001

B e f o r e :

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
MR JUSTICE DOUGLAS BROWN
and 
MR JUSTICE ASTILL
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	Reference by the Attorney General under S.36 Criminal Justice Act 1972
AG 5/2000		

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040,  Fax No:  020 7831 8838
Official Shorthand Writers to the Court)
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Mr John Howell QC (instructed by Attorney General)
Mr Jeremy Cahill & Mr Satnam Choong (instructed by Goodwin Cockerton & Colhoun, Solicitors for the acquitted person)

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Judgment
As Approved by the Court

Crown Copyright ©

Lord Woolf CJ: 

1.	This is an Attorney General’s reference under Section 36 Criminal Justice Act 1972. It arises out of a very carefully reasoned decision of His Hon. Judge Shand sitting in the Crown Court at Stoke-on-Trent. Judge Shand decided a preliminary issue in favour of the defendant relating to a prosecution of an offence under Section 34 (1) (a) of the Environmental Protection Act 1990. The result was that the defendant was acquitted.
2.	The particulars of the offence alleged were:
[The defendant] between (two specified dates) being a producer of ‘controlled waste’, namely condensate / residue, failed to take all such measures applicable to it in that capacity to prevent any contravention of Section 33 of the Environmental Protection Act 1990.
3.	The points of law referred to this court for its opinion are as follows:
i)	Whether a substance may only be discarded (and thus become ‘controlled waste’) if it is consigned to a recovery or disposal operation falling within part 3 or 4 of Schedule 4 to the Waste Management Licensing Regulations 1994?
ii)	Whether the fact that a substance was placed on land without first having been the subject of a recovery operation means that it is not capable of being ‘controlled waste’?
iii)	Whether the fact that a substance is capable of resulting in a benefit to agriculture when applied to land means that it is not capable of being ‘controlled waste’?
4.	It will be observed that central to all the questions posed is the term ‘controlled waste’. ‘Controlled waste’ is defined by reference to the definition of ‘waste’ in Council Directive 75/442/EEC of 15 July 1975, the ‘Waste Framework Directive' as amended. It is not disputed that this definition applies to Section 33 of the 1990 Act and is critical to the outcome of the reference. Article 1 of the Waste Framework Directive states:
“Waste shall mean any substance or object in the category set out in Annex 1 which the holder discards or intends or is required to discard.” (emphasis added)

The Background Facts
5.	For the facts leading up to this appeal I refer to the skeleton argument of Mr Howell QC for the Attorney General. A rendering plant was operated by a company, D. The Company received animal by-products in the form of slaughterhouse waste and offal and used batch cookers to produce animal feed, tallow and doggy chews from the by-products. During this process of rendering a condensate was produced which was nitrogenous. It was claimed by D that it had value as a fertiliser but this was disputed and in any event the value was limited. The condensate was malodorous and could cause water pollution. The condensate was collected and spread on the land belonging to a farm. The farm was owned by an individual who was a director of both D and another company which collected and spread the condensate.
6.	No waste management licence existed for the deposit of the condensate on the land. Neither D nor any of the other parties involved were registered waste carriers.
7.	While the points of law referred to this court are directed to the issue of whether the condensate was ‘controlled waste’, the issue which the judge decided was whether the condensate was “capable of being ‘controlled waste’”. This was the appropriate issue for him to determine. It distinguishes between the role of the judge and the jury, since if the judge decided the condensate was capable of being ‘controlled waste’ there would have to be a trial at which the jury would decide whether it was in fact ‘controlled waste’.
8.	In coming to a conclusion in favour of the defendant, the learned judge relied on the decision of Carnwath J in Mayer Parry Recycling Limited v The Environmental Agency [1999] ENVLR 489. In his judgment in that case Carnwath J held that the verb “discard” in the Waste Framework Directive has a special and limited meaning which requires the materials to be subjected to a disposal or recovery operation. Carnwath J stated in para 46 of his judgment, a passage which is cited by the judge, that:
“The general concept is now reasonably clear. The term discard is used in a broad sense equivalent to get rid of. The words “get rid of” is concerned with materials which have ceased to be required for their original purpose, normally because they are unsuitable, unwanted or surplus to requirements. That broad category is however limited by the context, which shows that the purpose is to control disposal and recovery of such material. Accordingly, materials which are to be reused (rather than finally disposed of) but which do not require any recovery operation before being put to their new use, are not treated as waste.”

9.	Later Carnwath J added in a passage of his judgment also cited by the judge –
“Insofar as the discarded materials do not require any recovery operation, they are not treated as waste at all. Insofar as they do require recovery operations, they remain waste until those recovery operations are complete.”
10.	On this approach for a substance to be ‘controlled waste’ a recovery operation is necessary.
11.	The judge, having cited those paragraphs, on the facts of this case came to the conclusion that the condensate which was spread on the farm did not require and therefore was not subject to any recovery operation and accordingly it was not capable of falling within the particulars of the offence charged. Mr Cahill argues on behalf of D, that the judge’s approach was very much one of coming to a conclusion on the facts. However, the judge made clear he was influenced by the decision of Carnwath J. He said:
“Standing back from all those arguments I have got carefully to analyse whether at the end of the day this condensate can properly be regarded as ‘controlled waste’. Bearing in mind the judgment in Mayer Parry, what does carry weight with me is that there is here, after the condensate leaves the defendants rendering premises, no question of a recycling or recovery operation, it is simply placed upon the land, and that in my view is a powerful indication, reading the judgment of the Chancery Division and the opinion of the Advocate General in the European cases, that this is not waste. The other matters are of debate, they are matters of emphasis. I have come to the conclusion that I prefer the arguments raised by the defendants as to the proper application of the statutory definition.”
12.	In coming to his decision, Carnwath J relied on the argument of Advocate General Jacob in two cases. He said:
“Two recent decisions of the European Court, and the opinions of Advocate General Jacobs in each of them, have been central to the argument in this case. They are the case of criminal proceedings against Euro Tombesi and Others [1997] ECR1/3561 (“the Tombesi case”) and Inter-environnement Wallonie v Region Wallonne [1997] ECR 174 11 (“the Wallonne case”).”
13.	The Advocate General is said by those specialising in this area of the law in those opinions to have established ‘the Tombesi bypass’, because if his approach is correct it provides a way of circumventing the problem of determining whether something is discarded.
14.	Any decision of Advocate General Jacob should be treated with the greatest respect. However, Mr Howell submits, correctly on this issue, that the Advocate General’s approach was not endorsed by the European Court’s judgments in the two cases in which he gave his opinion. In addition, Mr Howell submits that a later decision by the European Court in the Arco Chemie Nederland Limited case ([15 June 2000] joined cases C-418-97 and C-419-97) is inconsistent with the views expressed by the Advocate General. Mr Howell therefore submits that because Mr Justice Carnwath relied upon the Advocate General’s approach, his judgement should not be followed. 
15.	The legislation involved is complicated and involves a legislative paperchase. However, it is not necessary to detail the paper trail. Mr Howell in the course of his argument has guided us step-by-step through the legislation and through the relevant decisions of the European Court and as a result we are satisfied that not only is the approach of the Advocate General inconsistent with the decision in Arco, but in addition it is not supported by the language of the Framework Directive.
16.	The approach of Carnwath J also leaves an undesirable gap in the application of the Directive which is in conflict with the general purpose of the Directive. This is, that there should be a system of waste control which is effective. In the very recent case of Castle Cement Limited v Environmental Agency and Lowther [22 March 2001–unreported], Stanley Burnton J pointed out (para 17):
“Whether material is ‘waste’ cannot depend on whether any particular holder of it stores and uses it in an environmentally and otherwise safe manner. Its categorisation should depend on its qualities, not on the qualities of its storage or use. Otherwise the material would be and cease to be waste and come within and outside the controls on hazardous waste as it passed from one holder to another. This would be inconsistent with any rational system of waste control.”
17.	Stanley Burnton J added:
“But for the subsequent judgment of the European Court of Justice in Arco, I should have gratefully adopted Carnwath J’s fine exegesis of the law on this subject. As it is, and regrettably from my point of view, his judgment must now be read subject to the decision of the court in Arco. In particular the last sentence of para 46 of his judgment is inconsistent with paragraphs 94 and 97 of the judgment in Epon.”
18.	We consider that the approach of Stanley Burnton J is correct. The approach of Carnwath J depends upon the references to recovery and disposal operations in Annex IIA and IIB of the Framework Directive. But the Annexes are not included in the definition of waste and so the restrictive approach of Carnwath J is not applicable.
19.	Fortunately for the purposes of this reference it is not necessary for this court to define what is meant by waste or what is meant by discard. It is sufficient in order to give our opinion on the three points of law on which the Attorney General seeks our opinion to acknowledge that recovery or disposal operations are not required before a substance can be ‘controlled waste’. Accordingly we would answer each of the questions on which our opinion is sought in the negative. 
20.	Mr Cahill argued that on the facts the judge was entitled to come to the conclusion which he did irrespective of the fact that he had misdirected himself as to the requirements of ‘controlled waste’. We do not agree and to the extent that the judge’s judgment is in conflict with the answers which we have given to the questions raised by the Attorney General that judgment must be regarded as being incorrect. On the facts the condensate was capable of being regarded as discarded and therefore capable of being ‘controlled waste’.