Plastics for recycling are "waste"

A plastics recycling business has lost a dispute about whether materials intended for recycling are "controlled waste" and hence subject to waste management legislation. The outcome of the case reinforces a clear trend in legal judgements over the past few years, and can only discourage similar challenges in the future.

The case arose from a serious fire at the premises of D&L Plastics in Thetford in October 1991. The four-day blaze consumed more than 1,000 tonnes of offcuts and reject plastic bottles which had been accumulated for grinding and resale.

Following the fire, further deposits of plastic waste were made at the site. Concern about the hazardous conditions of the deposits prompted Norfolk waste regulation authority (WRA) to serve a notice on the company under section 16 of the Control of Pollution Act 1974 requiring the "removal of controlled waste".

D&L's owner, David Switzer, challenged the notice on the ground that the material which the company processed was not "controlled waste", and Thetford magistrates upheld his appeal on the basis that "one man's waste is another man's raw material." Their ruling was challenged in the Divisional Court by the WRA as being inconsistent with the definition of waste in section 30 of the 1974 Act and its subsequent interpretation by the courts.

The council also argued that the magistrates' verdict was inconsistent with the 1975 EC "framework" Directive on waste, in particular as it had been interpreted in 1990 by the European Court of Justice in the case of Vessoso and Zanetti. The Court ruled that the notion of "waste" could not be dependent on whether the holder intended to have it recycled or not, and held that the Directive did not exclude from the definition of "waste" materials capable of or intended for recycling (ENDS Report 184, p 30).

In the event, the Divisional Court was not given the opportunity to give a ruling on the D&L case because Mr Switzer accepted the force of the WRA's arguments. The matter was settled by way of a consent order, approved by the High Court, which confirmed that scrap plastic is a controlled waste. The outcome lends no support to the continuing demands of the scrap metal industry in particular to be exempted from waste management legislation on the grounds that scrap metal does not fall within the statutory definition of "waste".

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