A number of sites have been brought to CL:AIRE’s attention by the Environment Agency where the Definition of Waste: Code of Practice (DoW CoP) has been mis-used to deposit materials in an agricultural setting. CL:AIRE needs to clarify to Qualified Persons (QPs) and projects that such use is outside the DoW CoP scheme. This is made clear in the questions asked of the QP in the Declaration, where the QP has to specifically tick a check box that states the materials use intended does not include agricultural land raising or re-profiling.
Several cases brought forward where land re-profiling or land raising for future agricultural use are specifically the main aim of the projects in question. A number of project proposers and those writing Materials Management Plans (MMPs), and some QPs, seem to have taken a very broad view that certain permitted rural development activities under planning rules, termed engineering activity using waste, permit the use of DoW CoP as development activity. However, where the end use is arable land, grazing land or equine use, these do NOT fall under the DoW CoP scheme in general. This is irrespective of the site having deemed or permitted planning permission for engineering activities using materials import.
Issues with Agricultural Reuse
There are reasons for this exclusion which are linked to intentions and permitting and the relevant tests in the Waste Framework Directive (WFD), as well as materials specifications. Agricultural settings require very specific materials for land improvement, reprofiling or land raising. The agricultural setting, where assessment for materials suitability as an amendment to agricultural soils is needed, requires a different skill set. This must include understanding of soil science and function in that rural setting. The specification of soils imports for such uses would need to include; drainage characteristics, soil structure and biological activity, potential for crop and livestock uptake and soil stability assessments as a minimum. None of these are part of the DoW CoP materials suitability assessment process, which in the main is linked to reuse of materials on hard development sites or brownfield / infrastructure land. Nor do they lie within the CL:AIRE QP’s area of specialism as required for DoW CoP. In addition, the spreading of materials to land is covered by separate regulatory permits, where permit requirements require these specific specialisms to be aligned to the setting and specific uses under those permits.
In addition, use of the DoW CoP relies on the mechanisms and criteria required under the by-products and recovery aspects of the WFD. In many cases brought to CL:AIRE’s attention, farmland has been used for projects where there is no substitution. This means the farmer has never had a business model or the finances available to show they can uplift or re-profile land without import of waste spoil where gate fees are charged to cover the activity costs. The Environment Agency has provided clear evidence of this activity in some cases in their investigations. These projects therefore again do not fit under DoW CoP, where gate fees could be taken as an indicator of a discard activity. These projects would most likely fit better under land spreading permits or recovery permits, where proper, site-specific materials specification, linked to the permit requirements, can ensure the right materials are used for the activity in question. Importing multiple different loads of spoil, even if clean naturally occurring soils, from different sites, with different soil characteristics to the existing land and with different drainage and soil health characteristics cannot be good for the environment or even achieve the project aims if a different regime to the accepted permitting one is used in these settings.
DoW CoP does therefore not apply to these types of activity, even if they have some sort of planning agreement.
Advice to QPs
QPs are required to check the relevant tick box to state the activity is not for agricultural end use, they must do this with the integrity required to function as a QP. To not do so would be against their chartership ethics. All must recognise that QPs found in error in these situations risk CL:AIRE applying its disciplinary procedures (https://www.claire.co.uk/projects-and-initiatives/dow-cop/28-framework-and-guidance/821-qualified-person-disciplinary-grievance-procedures) which could involve notification to the QPs chartership body.
DoW CoP can only be used in rural settings where there are specific development / engineering works being undertaken, such as building a slurry lagoon or a level platform for agricultural structures to be erected. It is not for land with an arable or livestock end use. If sector representatives wish to engage in further discussion with CL:AIRE, the Environment Agency / Natural Resources Wales and Defra about future soil depots / Earthbanks and alternative or aligned reuse mechanisms, with the provision of standardised soil and engineering materials for specific end uses which include agriculture, then that engagement is welcomed.