| EUROPEAN COMMUNITY — Environment — Waste — Used electrical items awaiting repair and re-sale — Whether “waste”— Environmental Protection Act 1990, ss 33, 75 — Waste Management Licensing Regulations 1994, reg 19, Sch 4 — Council Directive 75/442/EEC (as amended), art 1(a), Annexes I, II
Environment Agency v Thorn International UK Ltd; [2008] WLR (D) 219
DC: Moses LJ and Blake J: 2 July 2008
A used electrical product, such as a refrigerator or a computer monitor, which had been taken back from its original owner on purchase of a replacement model, and then bought by a company for repair or refurbishment prior to re-sale, was not, while awaiting such repairs, “waste” within the meaning of the Environmental Protection Act 1990 and Council Directive 75/442/EEC.
The Divisional Court of the Queen’s Bench Division so held when dismissing an appeal by way of case stated by the claimant, the Environment Agency, from a decision of the West Midlands justices, that the defendant, Thorn International UK Ltd, had not committed the offences of depositing and keeping controlled waste on land that did not have a waste management licence, contrary to s 33 of the 1990 Act. The defendant had purchased goods from Wincanton, a company that acquired used items from electrical appliance retailers who had supplied replacement products to consumers and contracted to take away their existing appliances. The offences were alleged to have been committed while the goods were temporarily stored on the defendant’s premises pending refurbishment and re-sale.
MOSES LJ said that, by s 75 of the 1990 Act, waste was to be construed as in art 1(a) of Council Directive 75/442/EEC (“the Waste Framework Directive”) which defined “waste” as any substance or object in the categories set out in Annex I to the Directive which the holder discarded or intended or was required to discard. There was nothing to dictate the conclusion that, because their owners no longer wanted them, the items in this case were discarded: they might be as good as new, not suitable, or simply considered out of date. There existed no principle which established that the magistrates were bound to conclude that these items, which had been subjected to two processes of selection, by Wincanton and by the defendant, had in fact been discarded. When the electrical goods had been exchanged for replacement products, there was nothing to say they could not be required for their original purpose. It was not the case that, whenever a consumer let go used goods, by law those unwanted goods became waste and remained waste until the repair or refurbishment was completed. This was too extreme a view and too stringent a rule. It was not an established rule of law that any item awaiting refurbishment was to be considered waste until it had been refurbished. Accordingly, the magistrates had rightly concluded that the items stored at the defendant’s premises were not waste.
BLAKE J gave a concurring judgment.
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