Court of Appeal ruling on the meaning of the term “recovery”

July 2, 2018

Neal Soil Suppliers Limited & Others v Natural Resources Wales [2017] EWCA Crim 645 involved an appeal arising from a Crown Court ruling in the course of a preparatory hearing in relation to the meaning of the term “recovery”.

The Appellant held an environmental permit enabling it to accept and treat waste soil and aggregate so as to produce useable and saleable soil and aggregate at a site which is within the Gwent Levels, a Site of Special Scientific Interest. The permit authorised the Appellant to store waste soil on the site for a maximum of three years “prior to recovery”. The principal issue essentially concerned the meaning of the term “recovery” in the Waste Framework Directive, and in particular the meaning of the phrase “prior to recovery” in the environmental permit.

The Appellant argued that once material had been subjected to a recovery operation (such as sorting the waste into its component parts) then the recovery process must be taken to have been commenced, and it could no longer be said that the waste was being stored “prior to recovery”. Natural Resources Wales (“NRW”) contended that it is the state of affairs which results from the outcome of recovery operations which is described by the term “recovery”. On that basis, it submitted that the words “prior to recovery” in the permit were to be read as referring to the whole period prior to the achievement of the result whereby the material is recovered.

The Court of Appeal, whilst not committing themselves definitively to the Appellant’s proposition, gave the Appellant’s approach a green light for the purposes of the case. The Court of Appeal observed that the definition of “recovery” in the Directive does not proceed by reference to a result. On the contrary it describes “recovery” as meaning “any operation” which operation is then defined by reference to the result achieved.

On a slightly more straightforward point, the Court also confirmed that terminology in an environmental permit must be construed consistently with the Directive, and that an enforcement notice issued under the environmental permitting regime must itself be interpreted in conformity with the terms of the underlying environmental permit.

In the light of this ruling, NRW conceded that it could not, for the purposes of the prosecution, establish (as they had to do) that the waste in question had been stored for a period in excess of three years prior to recovery. The prosecution on that charge therefore could not proceed.

Stephen Hockman QC and David Hercock appeared for the successful Appellant, instructed by Dolmans of Cardiff.