“(1) A disposal of material is a disposal of it as waste if the person making the disposal does so with the intention of discarding the material. 40 (2) The fact that the person making the disposal or any other person could benefit from or make use of the material is irrelevant. 6 ……….”
“(1) There is a disposal of material by way of landfill if – (a) it is deposited on the surface of land or on a structure set into the surface, or 15 (b) it is deposited under the surface of land. (2) Subsection (1) above applies whether or not the material is placed in a container before it is deposited. 20 (3) Subsection (1)(b) above applies whether the material – (a) is covered with earth after it is deposited, or (b) is deposited in a cavity (such as a cavern or mine). (4) If material is deposited on the surface of land (or on a structure set into 25 the surface) with a view to it being covered with earth the disposal must be treated as made when the material is deposited and not when it is covered. ……. 30 (8) In this section “earth” includes similar matter (such as sand or rocks).”
“Since it appears that the Tribunal found that the deposit (and possibly the transport) were made on behalf of Darfish, it is argued that its intention was the only intention which the Tribunal was required to consider. I disagree. I have construed disposal as the antonym of retention. The focus of the provisions is 10 upon the person getting rid of something, not upon the person retaining or acquiring something. DNS was not making a disposal, on my construction, on behalf of Darfish. It was assisting in the acquisition and retention of the material on behalf of Darfish. But it was making a disposal on behalf of Wilson Bowden and Hallamshire, and it is their intention which should have been determined by 15 the Tribunal.”
“[33] In those circumstances, in my view, it is clear that, assuming there to have been a disposal at all, the disposal relevant for the purposes of s 40(2)(a) was made by WRG on its own behalf. So the question posed by s 64(1) is 30 whether WRG then intended to discard the materials. The word ‘discard’ appears to me to be used in its ordinary meaning of ‘cast aside’, ‘reject’ or ‘abandon’ and does not comprehend the retention and use of the material for the purposes of the owner of it. I agree with counsel for WRG that s 64(2) does not apply in such circumstances because there is, at the relevant time, 35 either no disposal or no disposal with the intention of discarding the material. [34] It follows from this conclusion that the relevant intention may well not be that of the original producer of the materials. There is no principle that material once labelled as ‘waste’ is always ‘waste’ just because the original 40 producer of it threw it away. That is not the relevant time at which the satisfaction of the conditions imposed by s 40(2) is to be considered. Recycling may indicate a change in the relevant intention but is not an essential prerequisite; re-use by the owner of the material for the time being may do likewise. Thus although the passing of title is not conclusive, it is, in 45 my view, of greater relevance than Moses J, the tribunal or Barling J were prepared to attributed to it. 16 [35] It may be that the economic circumstances surrounding the acquisition of the materials in question by the ultimate disposer of them will cast light on his intention at the relevant time. They cannot, as I see it, affect the decision on this appeal because the use of the relevant materials by WRG is clear and 5 such use is conclusive of its intention at the relevant time by whatever means and on whatever terms WRG acquired them.”
“… establish (or even support) the proposition, as the appellants argue, that ‘use’ is the antonym of ‘discard’; it merely emphasises that ‘retention and use’ of material in the manner under consideration in WRG does not amount 25 to ‘discarding’ such material.”
“I do not read the Court of Appeal’s decision in WRG as requiring that some act of ‘retention’ or separation out of a part from the rest of the whole must be identified before an operator can be said not to be discarding the waste for the 25 purposes of s 64.”