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Recovery v Disposal

Chris Berryman* reviews the implications of new guidance on the re-use of waste soil materials

kljThe sustainable re-use of waste materials plays an important role in the restoration of quarry workings and brownfield redevelopment, allowing sites to be restored in accordance with planning requirements and providing new opportunities for previously derelict land.

Image: The Waste Hierarchy

Waste soil materials may arise from a large range of sources including major engineering, infrastructure and development projects similar to Crossrail and HS2 and the processing of construction and demolition materials.

These materials are considered ‘waste’ under the European Union Waste Framework Directive (2008/98/EC), which provides the legislative framework for waste management.

Recovery or Disposal?

klWaste Recovery (as opposed to disposal) is clearly preferable in terms of the waste hierarchy (picture). Many local authorities now implement ‘zero landfill’ policies and major capital projects have strong environmental commitments to direct suitable wastes away from landfill. The option to recover certain inert wastes and deposit them at suitable sites has significant environmental, strategic and commercial benefits.  So – what’s the difference?

Picture: What does the new guidance mean for the Waste industry?

  • Disposal is about managing waste in a safe and environmentally sound manner. In the context of the disposal of wastes on land, such activities are considered ‘landfill’, and regulated under the requirements of the Landfill Directive (99/31/EC).
  • Recovery is about using waste to replace other non-waste materials, to achieve a beneficial outcome in an environmentally sound manner. A ‘recovery’ approach will preserve virgin materials which may otherwise be used, thereby conserving natural resources.

The UK regulatory position

For over a decade the Environment Agency (EA) based its decision-making on waste recovery to land through five tests - detailed in EA guidance RGN13 Defining Waste Recovery: Permanent Deposit of Waste on Land:

  • Is there a clear benefit from the activity?
  • Is the recovered waste material suitable for its intended use?
  • Is the minimum amount of waste being used to achieve the intended benefit?
  • Is the waste being used as a substitute for a non-waste material?
  • Will the proposal be completed to an appropriate standard?

jklhPicture: Methley Quarry (image courtesy of Tarmac)

Then, in November 2015, the Methley Quarry Court of Appeal judgment1 challenged the Environment Agency’s (EA) established waste recovery guidance. The Appeal (finding in favour of the appellant Tarmac), overturned the EA’s original recovery decision and subsequent Planning Inspectorate decision. The judgment instructed the EA to grant a recovery permit for restoration of the site, agreeing with the appellant that planning consent obligations should be the primary consideration in whether a recovery permit should be granted.

The judgment led to 12 months of uncertainty for the Waste and Quarry sectors, while the EA considered the implications of this ruling. In October 2016 the EA finally quietly released new guidance2, which focuses on the ‘substitution test’. The main push is to demonstrate that if waste material could not be used, then the applicant would do the work to get the same outcome using non-waste materials.

The guidance now provides three new criteria by which to demonstrate this ‘substitution test’:

  1. Evidence of financial gain by using non-waste materials;
  2. Evidence that funding has been secured to cover the expected cost of the work using non-waste; or
  3. Evidence that there is an obligation to do the work: for example - being required by a planning condition to restore the land according to an approved plan.

kljhIt is our belief that the third test will be the likely route to demonstrate recovery in most cases; though there may be instances where project economics can demonstrate the other ‘financial’ tests.

BI Orsett Quarry and Ecological Park from the air (prior to waste recovery works)

Waste Recovery Plans

The case for recovery needs to be presented to the EA by means of a Waste Recovery Plan (WRP), in which an operator or applicant should demonstrate that one of these tests can be fulfilled. The new EA guidance also defines additional technical requirements to be considered in support of a WRP and Environmental Permit application.

The new EA guidance has also been adopted by Natural Resources Wales (NRW) and ESI understands that the Scottish Environmental Protection Agency (SEPA) is actively considering whether to revise their recovery guidance.

In Practice

.nmSince publication of the new EA guidance, my company (ESI) has manged several successful Recovery Permit applications and secured favourable recovery decisions based on both the ‘obligation’ and ‘financial’ tests.

Picture: Site investigation at Orsett Quarry

The ‘financial’ test

Orsett Quarry is a dormant sand and gravel quarry in Essex, with an extant ROMP consent for continued mineral extraction and restoration. During its dormancy, sensitive habitats and protected species have established, which require relocation to allow quarry operations to recommence. An adjacent area within the wider landholding was identified for the creation of an ecological park. Inert waste soils were to be used to engineer a suitable landform, to support habitat and species relocation.

A case for recovery was made to the EA based on the financial viability of the wider quarry scheme. The case demonstrated that it would, theoretically, be economically viable to undertake the ecological park using non-waste; however the use of suitable wastes would preserve virgin materials. The EA considered that the evidence supported the case for recovery and issued a Recovery Environmental Permit.  This also allowed the release of several million tonnes of sand and gravel reserve which could otherwise not be extracted.

The ‘obligation’ test

kljhPicture: Quarry restoration using virgin materials

We think it is critical that any new planning consents for possible recovery schemes are worded in an appropriate manner to avoid the pitfall of committing to ‘disposal’, rather than waste ‘recovery’. The case for recovery should be considered from the very start of the planning process.

We are currently supporting several clients in the early planning stages with recovery schemes, which require anything from a few tens of thousands of cubic metres to tens of million cubic metres. It is notable that the new guidance no longer places any arbitrary or inferred limits on the volumes of waste which can be deposited under a Recovery Permit.

This is of considerable importance to the quarrying sector when considering whether to restore a site to either a low or high level restoration scheme, as it effectively opens the door for any new quarry to be restored to a high level as a ‘recovery activity’ in the future.

n,BICrossrail construction

If a quarry can be restored as recovery, the politically emotive terms ‘landfill’ and ‘disposal’ do not apply, presenting a real opportunity when it comes to considering local minerals and waste plans. Furthermore, there is no landfill tax burden associated with recovery, which further enhances commercial opportunity. Waste producers too will often have contractual or strategic drivers to divert waste from landfill towards recovery, making recovery more commercially attractive.

In our experience, sites with existing planning consents can present a challenge, as it often assumes the use of waste alone and may frequently employ such terms as ‘disposal’ and ‘landfill’. This precludes the opportunity to demonstrate that non-wastes could be used, or that recovery has been considered and so the substitution test cannot be demonstrated.

However, for sites where existing planning presents a challenge to recovery, there are still ways a case can be made based on the ‘obligation’ test. This may be through Section 106 agreements with relevant stakeholders, including the local planning authority, to provide a legal requirement for a scheme to be completed regardless of whether waste or non-waste can be used.

Picture: Inert waste processing prior to reuse or recovery

.nAlternatively, written confirmation from a planning authority may suffice to confirm that the authority would be willing to see either waste or non-waste used. In these instances, dialogue and engagement with the local planning authority may deliver the required result without the need for a major amendment or variation to existing planning.


In our recent experience the new recovery guidance has offered real opportunities to both Quarry and Waste sectors, providing a mechanism whereby mineral and brownfield site restoration can be pursued, without the challenges inherent in disposal and landfill.

k,jghPicture: Quarry restoration using inert waste

We understand that since publication of the new guidance the EA is now receiving notably fewer Recovery Permit applications. Our impression is that this is largely due to a lack of understanding by industry including operators, planners and consultants.

This may be a result of the lack of public consultation and engagement from the EA following the Court of Appeal judgment and the low-key release of the new guidance. We have also found that the detail of the new guidance is yet to be fully understood by many local planning authorities. It is therefore incumbent on practitioners in our field to disseminate the new recovery guidance and inform the wider planning sector.

With the circular economy and waste hierarchy promoting recovery over disposal, we believe that the new regulatory position on the deposit of waste to land offers real commercial and environmental opportunities.


  1. Tarmac Aggregates Ltd, R (on the application of) v The Secretary of State for Environment, Food and Rural Affairs & Anor [2015] EWCA Civ 1149 (17 November 2015)
  2.  Environment Agency, 2016. Waste recovery plans and permits. Available online at (Environment Agency, 2016).


klj* Chris Berryman, Senior Consultant, ESI Consulting.  Chris is a Senior Consultant at ESI, a Hydrogeologist and former Secretary to the Geological Society’s North West Regional Group.

Chris currently leads ESI’s waste permitting and waste recovery capability and sits on the Environment Agency’s Landfill Regulation Group Inert Waste Sub Group and the Mineral Products Association (MPA) Waste Working Group, closely involved in the development of the new Environment Agency guidance on waste recovery.