Waste—regulatory framework The Waste (England and Wales) Regulations 2011, SI 2011/988 transposed the requirements of the Waste Framework Directive 2008/98/EC (WFD) into domestic law. Predecessor Directives were implemented through the various Acts and Regulations, including the following: • the Environmental Protection Act 1990, particularly s 34 dealing with the ‘duty of care’ on those responsible for waste • the Control of Pollution (Amendment) Act 1989 and the Controlled Waste (Registration of Carriers and Seizure of Vehicles) Regulations 1991, SI 1991/1624, dealing with the registration of waste carriers • the Environmental Permitting (England and Wales) Regulations 2016, SI 2016/1154, dealing with permitting of waste disposal and recovery operations • the Hazardous Waste (England and Wales) Regulations 2005, SI 2005/894 and the Hazardous Waste (Wales) Regulations 2005, SI 2005/1806 (W.138), and Hazardous Waste (England and Wales) (Amendment) Regulations 2016, SI 2016/336 dealing with hazardous waste, and • the Town and Country Planning Act 1990 and the Planning and Compulsory Purchase Act 2004 and subordinate legislation made

By-product or waste? Determining whether a substance or object is waste is can be complex. See Practice Note: Meaning of waste—what is waste? This may involve deciding whether a substance or object is a product/by-product, or a production residue. The term ‘by-product’ is not defined in domestic legislation, and production residues can be particularly difficult to assess. Key legislation that may involve a need to assess whether a substance or object is a product, by-product or waste includes: • the Environmental Protection Act 1990, particularly section 34 dealing with the ‘duty of care’ on those responsible for waste • the Control of Pollution (Amendment) Act 1989 and the Controlled Waste (Registration of Carriers and Seizure of Vehicles) Regulations 1991, SI 1991/1624, dealing with the registration of waste carriers • the Town and Country Planning Act 1990 and the Planning and Compulsory Purchase Act 2004 and subordinate legislation made under those Acts, dealing with waste plans • the Hazardous Waste (England and Wales) Regulations

Meaning of recovery The definition of ‘recovery’ is given in paragraph 2 of Part 1 of Schedule 9 to the Environmental Permitting (England and Wales) Regulations 2016, SI 2016/1154 where it is stated that ‘recovery’ has the same meaning as in the Waste Framework Directive 2008/98/EC as amended by Directive EU 2018/851 of 30 May 2018 (WFD) and related terms are to be construed accordingly. ‘Recovery’ is defined in the WFD as any operation the principal result of which is waste serving a useful purpose by: • replacing other materials which would otherwise have been used to fulfil a particular function in the plant or in the wider economy, or • being prepared to fulfil a particular function in the plant or in the wider economy WFD Annex II sets out a non-exhaustive list of recovery operations. Recovery is one of the key waste management elements of the WFD and together with disposal operations comprise waste treatment, as defined. The correct classification of a waste treatment operation

Introduction Waste is defined as ‘any substance or object which the holder discards or intends or is required to discard’. The definition of waste is complex and often involves a case-by-case assessment of whether the holder of the item has discarded it, intends to discard it, or is required to discard it. The definition of ‘discard’ must be interpreted in light of legislative provisions relating to the harmful effects of waste, and protection of the environment and human health. However, some materials are excluded from the scope of waste. This Practice Note outlines the provisions relating to matters excluded from the legislative definition of waste. See also the following Practice Notes: • Meaning of waste—what is waste? • Meaning of waste—definition of waste • Waste projects—overview • Environmental Permitting Regulations 2016—waste installations, waste operations and exempt waste operations • Environmental Permitting Regulations 2016—permits, applications and exemptions This Practice Note refers to EU law. Over time, the law policy and guidance on waste

What is the ‘waste hierarchy’? Under the Waste (England and Wales) Regulations 2011, SI 2011/988, reg 12, an establishment or undertaking which imports, produces, collects, transports, recovers or disposes of waste, or which as a dealer or broker has control of waste must, on the transfer of waste, take all such measures available to it as are reasonable in the circumstances to apply the following waste hierarchy as a priority order: • prevention • preparing for re-use • recycling • other recovery (eg energy recovery) • disposal The Waste (England and Wales) Regulations 2011 implemented the requirements of the Waste Framework Directive 2008/98/EC (WFD) into domestic law. Predecessor Directives were implemented through the various Acts and Regulations, including the following: • the Environmental Protection Act 1990, particularly section 34 dealing with the ‘duty of care’ on those responsible for waste • the Control of Pollution (Amendment) Act 1989 and the Controlled Waste (Registration of Carriers and Seizure of Vehicles) Regulations 1991, SI 1991/1624,

Waste indicators guidance The EA has produced guidance ‘Check if your material is waste’. This is helpful in deciding whether a material is waste, is a ‘by-product’ or meets ‘end of waste’ status. In the transition towards a more circular economy, waste indicators have changed in the push towards resource efficiency and productivity. For more information on the circular economy, see Practice Note: Circular Economy and Resource Efficiency. Positive waste indicators Production residues 'Production residues' are substances not deliberately produced in the extraction, production or manufacturing process. They are normally classified as waste unless they meet the criteria for 'by-products' which are not waste. See Practice Note: Meaning of waste—products and by-products. In Commission v Italy, three separate enforcement actions were brought against Italy in relation to its failure to fulfil its obligations under Directive 75/442/EEC (as amended), and were considered by the same court on the same day. Each case concerned separate subject matters, although the principles were dealt with in

Introduction The Waste (England and Wales) Regulations 2011, SI 2011/988, (Waste E&W Regs 2011) is one of the prominent pieces of legislation on waste, but there are many. It transposed many of the requirements of the Waste Framework Directive 2008/98/EC, as amended (WFD 2008), into domestic law. Predecessor Directives were implemented through various Acts and Regulations, including the following: • the Environmental Protection Act 1990 (EPA 1990), particularly section 34 dealing with the ‘duty of care’ on those responsible for waste • the Control of Pollution (Amendment) Act 1989 and the Controlled Waste (Registration of Carriers and Seizure of Vehicles) Regulations 1991, SI 1991/1624, dealing with the registration of waste carriers • the Environmental Permitting (England and Wales) Regulations 2016, SI 2016/1154, dealing with permitting of waste disposal and recovery operations • the Hazardous Waste (England and Wales) Regulations 2005, SI 2005/894 and the Hazardous Waste (Wales) Regulations 2005, SI 2005/1806 (W.138), and Hazardous Waste (England and Wales) (Amendment) Regulations 2016, SI 2016/336

Local Government analysis: The Planning Court considered the application of the statutory presumption of dedication as a highway after public use for 20 years in determining whether footpaths should be added to the Definitive Map under section 53 of the Wildlife and Countryside Act 1981 in circumstances where a cessation of use had occurred due to the foot and mouth outbreak. It was held there is an important distinction between an ‘intermission’ in public use in assessing whether a way has been actually enjoyed for 20 years, and an ‘interruption’ in use during that period. Actual enjoyment is to be assessed by reference to the whole 20-year period. The fundamental question is whether the use over the entire 20 years is sufficient to make a reasonable landowner aware that a public right of way is being asserted. In contrast, interruption requires a physical and actual interruption interfering with the enjoyment of the way with the intention of challenging the public’s enjoyment of it. The Inspector’s decision was quashed as no reasonable landowner would conclude, from the mere absence of public use during the four-month period of restrictions, that the public assertion of the right had been withdrawn. Written by Ruth Stockley KC, barrister at Kings Chambers.

Local Government analysis: Swindon Borough Council successfully appealed against a decision by a District Judge to discharge an anti-social behaviour injunction (‘ASBI’) which prohibited begging. The Court of Appeal offered useful guidance on the meaning of ‘anti-social behaviour’ for the purposes of section 2(1) of the Anti-Social Crime, Policing and Behaviour Act 2014 (ABCPA 2014). In particular, it confirmed that begging may satisfy this definition provided it causes (or is likely to cause) harassment, alarm and distress. The judgment further confirmed that the County Court has no jurisdiction to discharge ASBIs of its own initiative, absent an application by one of the parties. Written by Tara O’Leary, barrister at Cornerstone Barristers.

Property Disputes analysis: The Court of Appeal considered whether a tenancy which requires the tenant to provide services to which no monetary value is expressly attributed is a tenancy under which no rent is payable within the meaning of the Housing Act 1988 (HA 1988). The Court of Appeal held that, in the context of HA 1988, the provision of goods or services does not qualify as 'rent' unless the parties have attributed a monetary value to those goods or services. Accordingly, the tenancy was a tenancy under which no rent was payable, and accordingly it was not an assured shorthold tenancy and was terminable by notice to quit. Written by Ben Doyle, barrister at Lamb Chambers.

A definition in a statute or other document which provides that a term or expression means one thing and includes one or more other things has the extended meaning as indicated.

A provision that a word meaning a particular thing or things restricts its meaning to the thing or things specified.