As of October 2016, QPs have been asked to:
- Enquire whether the project has been the subject of an application for a deposit for recovery permit and if so whether that application (or preceding waste recovery plan proposal) was refused.
- Establish and record the contractual relationship in place between the supplier and recipient of soil materials.
- This requirement arrives from the outcomes of the Tarmac Aggregates Ltd v The Secretary of State for Env. Food & Rural Affairs & Anor (2015). The Court of Appeal found against the EA in its refusal to grant a Standard Rules Permit for recovery. The outcome was based on the fact the works would have occurred even if use of non-waste materials were required.
There was discussion during the case of the Wallasea Island project which was granted a recovery permit, despite the fact it could not prove the same e.g. the project would not have been feasible without a recovery permit. This case suggests the EA may have erred in granting the recovery permit to Wallasea Island, in which case it would be considered a waste disposal operation.
The DoW CoP specifically precludes its use on disposal sites in para 1.15
It follows that a projects viability without reuse of waste materials in place of primary materials becomes critical and precedes any attempt to define materials as a non-waste e.g. applying the DoW CoP.
Where a project has been refused a recovery permit and/or the recipient of the soil is being paid to accept it, then project teams should also seek further advice from the EA / NRW. Project teams are advised consider how they can summarise and prove a projects viability at the earliest possible stage to support the Qualified Person review. This might be most easily achieved by showing that planning decisions prove the need for the materials and that the project would be financially viable if primary materials had to be used to source the required volumes.
