The Court of Appeal has applied a strict interpretation of the concept of “treatment” of waste under the Waste Framework Directive in a case involving sludge used in agriculture.

Although the facts of the case – R (on the application of Cleansing Service Group Ltd) v Environment Agency 14th February2019 – are quite specific, the wider theme is the danger of making assumptions as to the meaning of key terms used in EU environmental directives, a legal background that will not disappear after Brexit.

The appellant removed sludge from their customer’s septic tanks, and then transported the sludge to farms, transferring it into storage tanks before it was used as agricultural fertiliser on the farms. The storage tanks were fitted with grids, which allowed any debris in the sludge to be separated out. The issues arose really because of the legal nature of this kind of sludge, and specifically the fact that the use of sludge in agriculture is subject to the Sludge (Use in Agriculture) Regulations 1989 which implement the Sludge Directive 1986. In effect, sludge which meets technical requirements of the Sludge Directive is not regulated as the ‘waste’ under the Waste Framework Directive and its national controls.

In addition, the storage of such sludge pending agricultural use is an exempt waste operation under the Environmental Permitting (England and Wales) Regulations 2016. However, the Environment Agency guidance on that exemption states that the screening of sludge to remove debris amounts to treatment which, therefore, requires a permit.

The appellant sought judicial review of the EA guidance. The Court of Appeal dismissed the appellant’s case.

The Court ruled that “sludge” meant “sludge” under the Sludge Regulations 1989 and Sludge Directive 1986. It did not mean “sludge including debris”. The term “residual sludge” in the waste exemption meant sludge which, after storage, was in a condition ready to be used in accordance with the Sludge Regulations 1989 and Sludge Directive 1986 by “spreading on the soil or any other application on or in the soil”. The residual sludge covered by the exemption was sludge that had been treated and was simply being stored pending use.

The Court also ruled that “storage” under the exemption meant “storage” and therefore did not include any form of treatment. The screening process to remove debris from the sludge was a form of treatment. The fact that neither the septic tank owner nor the ultimate user of the sludge were required to obtain a permit to screen debris, did not make it illogical to impose such an obligation on operators who collected sludge from septic tank owners and delivered it to farmers.