Now, however, the Divisional Court has considered the issue in the context of town and country planning legislation. The result is not binding in other areas of law, but nevertheless gives an indication of how the courts may be expected to approach the matter.
In R v Rotherham Metropolitan Borough Council (Divisional Court, 27 October 1989), Safety Kleen, a firm providing a paint spray cleaning service to industry, had been granted two planning permissions for a distribution and recycling centre.
The business involved the leasing of cleaning equipment and solvents to customers, with Safety Kleen providing fresh solvent and collecting drums containing used solvent. The used solvent was to be recycled at the centre by distillation for further use. As Mr Justice Schiemann noted, "it will be seen that in the way things were run by SK, the solvent remains the property of SK, the user contaminates it, and SK cleans it again. SK never regards it as waste."
Shortly after building work commenced on the site, a neighbouring householder challenged the legal validity of the planning permissions. He claimed that the application should have been advertised under section 26 of the Town and Country Planning Act 1971, on the grounds that it fell within one of the prescribed classes of "bad neighbour" development prescribed in the General Development Order 1977, namely the "construction of buildings or other operations#or use of land, for the purposes of the retention, treatment, or disposal of sewage, trade waste or sludge." Both the local authority and Safety Kleen argued that section 26 was inapplicable since no "trade waste" was involved.
The planning legislation provides no definition of the term "trade waste." Mr Justice Schiemann was referred to provisions in the 1974 Act (which, inter alia, provide that "anything which is discarded as if it were waste shall be presumed to be waste unless the contrary is proved"), regulations made under the Act and various EEC Directives, but did not regard these as legitimate aids to the construction of what was planning legislation.
"In principle," he concluded, "I think that the expression 'trade waste' should be given its ordinary meaning and not much help is to be gained from looking at special meanings given to those words in other Acts." Case-law dealing with the meaning of "waste" in other contexts was considered, especially that of Ashcroft v McErlain (30 January 1985, unreported) where the Divisional Court had held that the term "waste" in the 1974 Act should be decided on the ordinary meaning of the word.
Mr Justice Schiemann expressly declined to attempt a composite definition of the term, "trade waste", but concluded that the planning authority may have erred in its legal approach to the question. In particular, it had proceeded on the basis that the material was precluded from being waste since a further use for it was envisaged after recycling. This assumption, he held, was misplaced when considering the question of whether the proposal was a "bad neighbour" development.
Nevertheless, he admitted that it was a finely balanced question. "The argument at times reminded me of those black and white lithographs by Escher which depict fishes or swallows depending on whether one was concentrating on the black or the white. Some would say the picture was of fishes; others would say it was of swallows. The right answer is that it is of both fishes and swallows. Similarly here the solvents are perhaps rightly regarded as being both trade refuse and raw materials."
In the final result, though, this approach did not help the aggrieved neighbour. Whatever his findings, the Court retains a residual discretion whether to grant the relief sought, and in this case Mr Justice Schiemann declined to exercise that discretion.
He felt that throughout Safety Kleen had acted in good faith, and that it was reasonably believed that the operation would fall outside section 26. There was reason to doubt that even if the notices of the application had been published, the applicant would have seen or appreciated them, and now that the issue had been ventilated there was no matter advanced which would have been likely to affect the grant of planning permission. Furthermore, the first and main permission was not challenged until almost a year after it was granted, and manifestly there had been undue delay.
As a matter of strict precedent, the Rotherham decision is confined to questions of planning law rather than waste legislation, and it is clear that in the absence of more explicit statutory definitions, the courts will continue to consider each case on its own facts.
The approach of Mr Justice Schiemann will certainly reinforce the Government's view that activities such as scrap processing involve "waste" under the 1974 Act, and fall legitimately within the disposal licensing system. The fact that discarded material has value and is to be recycled or reused does not necessarily prevent it from being waste.
But it must be questionable whether it is appropriate that such uncertainties in the scope of the licensing system should be left to the vagaries of the case-law. The forthcoming environment Bill provides an opportunity for amending the definitions in the primary legislation to make the position of recycling under waste controls much more explicit than at present.