Until recently, it was possible to set out a very basic and understandable legal formula for end of waste as it applied in the UK, which was not complicated by either Brexit legislation or even by EU legislation. This was because the main source of English law on end of waste for some years has rested on a very clear 2007 ruling of the Court of Appeal in OSS Group Limited v. Environment Agency (‘the OSS ruling’). There was no conflict with EU law in this, at least as far as the UK was concerned, because the Court of Appeal stated that its ruling was in fact based on that ‘supreme’ and overriding EU law. Therefore, operators could with confidence rely almost exclusively on the quite straightforward criteria set down in the OSS ruling. Those criteria were (and remain) as follows:
- that the ‘end of waste’ material has been produced from a waste recovery
operation;
- that the material emerges from that recovery operation as a “distinct and
marketable” product;
- that this product can be used in exactly the same way as some “ordinary product”
and
- that such use can be made with no worse environmental effects (than those
produced by the same use of the relevant “ordinary product”).
This formula probably remains relevant to UK end of waste law, but there have been recent changes at EU level and via Brexit legislation and UK Government guidance that have really only ‘matured ’ since the end of the transition period on 31 December 2020, which on the face of it appear to have changed at least the way in which the law is worded, and which now have to be factored in.