Government publishes guidance on the "legal definition" of waste

Publication of the long-awaited document (69-page / 618KB PDF), produced by the Department for the Environment, Food and Rural Affairs (Defra), follows the department's consultation on draft guidance in January 2010. It is intended to assist businesses with day-to-day decisions on whether materials should be classed as waste, and also provides a detailed case law.

"In most cases, the decision is straightforward and whoever is taking the decision does not need guidance from the competent authorities to help them take it," Defra said. ""However, in some, cases, the decision is more difficult (e.g. where the substance or object has a value or potential use or where the decision is about whether waste has been fully recovered or recycled and has therefore ceased to be waste)."

Waste is governed at an EU level by the revised Waste Framework Directive (WFD), adopted in 2008. The Waste (England and Wales) Regulations, which implemented the WFD in England and Wales, came into force on 29 March 2011.

Whether or not a material is classified as waste is important, the guidance said, because it determines whether it will be subject to waste management controls.

Environmental law expert Simon Colvin of Pinsent Masons, the law firm behind Out-Law.com, pointed out that the reason the guidance had been delayed was to ensure that there was no conflict with European Commission's WFD guidance, published in June. However, he also highlighted that neither document was legally binding as case law would continue to take precedence.

Notwithstanding this,  environmental law expert Gordon McCreath of Pinsent Masons, said the guide would serve as a "useful reference point" for both the industry and regulators in discussions on whether purported waste fell within the legal definition.

"That should produce faster progress towards either agreement or at least focussing of the points of dispute," he said. "Any further guidance on the vexing question of the definition of waste is to be welcomed and the Defra guide provides a useful summary of the relevant case law that should be accessible for business, as well as lawyers. Of course the courts have the ultimate say in questions of definition of waste and legal advice will often ultimately be required."

Any substance or object is capable of being waste once it is "discarded" within the particular meaning of the WFD. The decision on whether something is discarded must take account of all the circumstances and have regard to the aims of the WFD, meaning that every case must be assessed on its merits. It can include not only the disposal of the material, but also its recovery or recycling.

The guidance sets out a number of criteria addressing the nature of the substance and what its possible uses might be in order to determine whether it is in fact 'waste'. Users of the guidance are asked to consider whether the substance has been produced with the intention of bring used or marketed, whether it is being re-used for the same purpose for which it was originally intended, whether it is left over from the production of a different object or substance, whether it is "hazardous or polluting" and whether it is still suitable for its use.

In addition, items of "low economic value" are more likely to fall within the definition since "it is a burden on the producer or holder". However, it will not necessarily follow that a substance with "good economic value" is not waste.

The guidance also considers when an object ceases to be waste, which in most cases will require something to be done to it. This can range from "something relatively minor" to "quite extensive processing", in some cases comprising a "series of recovery operations". Material must be "fully suitable as a replacement for a non-waste material" before it will no longer be considered as waste, meaning that all unwanted substances must be removed and all recovery steps - not just "pre-treatment" - followed.