2 Definition of agricultural ‘waste’

14.85 ‘Waste’ has a multi-faceted meaning and is difficult of precise definition. ‘Agricultural waste’ is defined by the Environmental Permitting Regulations 2010 to mean ‘waste from premises used for agriculture within the meaning of the Agriculture Act 1947’.¹⁸⁹ The 1947 Act defines agriculture in terms very similar to those in the Agricultural Holdings legislation, and considered in detail elsewhere in this work¹⁹⁰ – it includes horticulture, fruit growing, seed growing, dairy farming, livestock keeping and breeding, the use of land as grazing land, meadow land, osier land, market gardens and nursery grounds, and the use of land for woodland where that use is ancillary to the farming of land for other agricultural purposes.¹⁹¹ Agricultural waste is therefore ‘waste’ generated by the use of agricultural land for any of these kinds of farming activity, but ‘waste’ itself is not defined.

14.86 The primary definition of ‘waste’ is to be found in Art 1 of the Waste Framework Directive itself.¹⁹² This lays down a two stage definition, requiring a consideration first of the nature of the waste itself, and then of whether it is intended to be (or has been) discarded:

•Is the ‘Waste’ in question a substance, material or product that comes within any of the categories set out in Annex 1 to the Waste Framework Directive? These are extremely broad and can potentially cover any materials or substances used in modern farming.

•If it is, has the substance, material or product been discarded by its holder or is there an intention or requirement for him to discard it?

If the answer to both questions is ‘yes’ then the material, substance or product in questions is ‘waste’ and will be subject to the waste management regime in the Environmental Permitting Regulations.

14.87 Some items will clearly be ‘waste’ in all cases and potentially subject to the regulations – examples would include silage wrap, used oil, tyres and batteries and pesticide containers. Whether other substances or items are ‘waste’ will depend on whether they have been ‘discarded’ within the meaning of the second limb of the test above. This requirement has been the subject of conflicting decisions in the European Court of Justice and the domestic courts, leaving uncertainty surrounding the exact ambit of the definition of waste in many cases. In the Arco case¹⁹³ the ECJ gave a wide interpretation to the meaning of waste, holding that the only test was whether it had been ‘discarded’, interpreted in the light of the Waste Framework Directive – simply consigning something to a recovery operation did not necessarily mean that it was waste in all cases.¹⁹⁴ Similarly, the fact that something does not need to be put through a recovery process prior to reuse does not necessarily mean it is not waste. The key question is whether something is ‘discarded’, but the case law gives no clear guidance on the interpretation of this fundamental element in the definition of waste. In Attorney General’s Reference (No 5 of 2000)¹⁹⁵ the court of appeal held that a by product of a rendering plant that was collected and then spread on farm land was ‘waste’ and could not be unlawfully disposed of by application to land without a licence. This was the case even though it had not been subjected to a waste recovery process, the key factor being that it was ‘discarded’. In a later case – R (Rackham) v Swaffham Magistrates Court and the Environment Agency¹⁹⁶ – the uncertainty of the legal definition of waste was challenged by a farmer who was prosecuted for mixing municipal waste with compost prior to spreading it on his land. The High Court held that the definition of waste (and of what is meant by ‘discarding’ a substance, a key element of that definition) was not sufficiently unclear to engage the European Convention on Human Rights’ prohibition on punishment without a clear legal basis.¹⁹⁷

14.88 Livestock manure slurry and effluent. In European Commission v Kingdom of Spain¹⁹⁸ the European Court of Justice ruled that livestock effluent, including manure and slurry, will fall outside the definition of waste if: (i) it is used as a soil fertiliser and lawfully spread on clearly identified parcels of land; (ii) if its storage is limited to the needs of the spreading operations; and (iii) it need not be spread on land which part of the same agricultural holding that generated the effluent. Additional controls – such as those applicable in a NVZ¹⁹⁹ – must however be complied with.