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Recovery of waste in backfilling quarries: European case supports Methley decision

First publishedin Aggregates Business Europe
September October 2016
Chris Tofts of Stephens Scown reviews a recent European Court of Justice case and analyses its impact on recovery of waste in backfilling quarries.

With Tarmac’s victory in the UK Court of Appeal in R (on the application of Tarmac Aggregates (formerly Lafarge Aggregates) v Secretary of State for Environment, Food and Rural Affairs (the ‘Methley’ case), the UK minerals industry had hoped that the issue of backfilling of quarries with waste had been put to bed and that justification for the issue of Environmental Permits for such recovery of waste could simply be demonstrated.

However, life is rarely that straightforward in the world of mineral planning, and sure enough, the application of Methley in granting Environmental Permits was said to be subject to the judgment of the European Court of Justice (ECJ) in Città Metropolitana di Bari, formerly Provincia di Bari v Edilizia Mastrodonato (the ‘Italian case’).

The facts of the Italian case

The operator obtained planning permission for a quarry expansion and restoration by backfilling of worked areas with 1.2millon m³ of waste (other than extractive waste). When it came to applying for the permit for waste recovery operations the local authority ruled that this was a disposal operation and not a recovery operation. On appeal, the Regional Administrative Court overturned the local authority’s decision, saying that under the relevant Directives a backfilling operation, even if using waste other than extractive waste, may amount to the recovery of waste. The local authority, unhappy with that decision, appealed to the Italian Council of State, who referred the matter to the ECJ.

Consideration by the ECJ

The reference to the ECJ arose because of an apparent conflict within Directive 2006/21 (the Mining Waste Directive). Article 10(1) of that Directive refers to operators taking certain measures when placing extractive waste back into the excavation voids for rehabilitation and construction purposes, whereas Article 10(2) (depending on which language you are reading it in) provides that Directive 1999/31 (the Landfill Directive) shall continue to apply to the waste other than extractive waste used for filling in excavation voids [as appropriate].

In the Greek, French and Italian language versions, the Landfill Directive is to apply to waste other than extractive waste used for backfilling purposes, but in the German and English language versions, the same provision provides that the Landfill Directive is to continue to apply to such waste ‘as appropriate.’

According to EU law, where there is divergence between the various language versions of an EU legislative text, the provision in question must be interpreted by reference to the purpose and general scheme of the rules of which it forms part. The ECJ squared that circle by noting that the Landfill Directive applies only to waste that is disposed of, not to waste that is to be recovered.

Consequently, the Mining Waste Directive must be interpreted as not having the effect of making an operation backfilling a quarry using waste, other than extractive waste, subject to the requirements of the Landfill Directive, if that operation properly amounts to a recovery of waste.

The ECJ went on to set out the circumstances in which the backfilling of a quarry using waste other than extractive waste may be regarded as a recovery operation, noting that the essential characteristic of a waste recovery operation is that its principal objective is that the waste serves a useful purpose in replacing other materials which would have had to be used for that purpose, thereby enabling natural resources to be preserved.

The main objective of the recovery operation must be the conservation of natural resources, hence, if the conservation of natural resources constitutes only a secondary effect of an operation, the principal objective of which is the disposal of waste, that operation will be a disposal operation.

The ECJ gave some examples which might assist, stating that if it is established that the backfilling of the quarry in question would have taken place even if such waste had not been available and, accordingly, other materials would have had to be used, that would be a recovery operation.

Furthermore, the fact that the operator of the quarry acquires such waste in exchange of payment to the waste producer or holder may indicate that the main objective of the operation in question is the recovery of such waste. But the backfilling of a quarry may not be regarded as a recovery operation unless, in the light of the most recent state of scientific and technical knowledge, the waste used is suitable for that purpose.

Therein lies the issue for the determining authorities: what is the primary purpose of the operation? How will this affect the grant of permits?

It is worth bearing in mind that in the Methley case the UK Court of Appeal found that: “On the evidence before him…the Inspector clearly should have found that the backfill operation…was a legitimate function which would have had to be carried out in any event, whether waste was used or not” and without the restoration in that form “key ecological and recreational benefits to be achieved would not be achieved”.

The Court of Appeal’s judgment in Methley is clearly consistent with that of the ECJ in the Italian case. As such, we would expect to see that Methley is properly applied when Environmental Permits in the UK, and their equivalent in other EU countries, are being considered for issue for the recovery of waste by backfilling of (appropriate) waste in quarries, where that operation is required.
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Chris Tofts, Stephens Scown LLP
Chris Tofts, Stephens Scown LLP
Operators will wish to make it clear to the relevant environmental body in their country that backfilling is required (for example by restoration scheme), the environmental benefits of doing so and that it would be carried out whether or not waste is utilised to achieve that restoration.



Chris Tofts is a partner in the mining and minerals teams at Stephens Scown LLP. The firm has more than 70 years’ experience representing mining and minerals clients and its specialist team has recently been recognised, once again, by independent guides to the law, The Legal 500 and Chambers Global.

Chris can be contacted on
01872 265100 or email
planning@stephens-scown.co.uk

For more information visit
www.stephens-scown.co.uk

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