Outer House case considering the meaning of “waste” in terms of the lease of a landfill site near Stranraer.  The lease provided that the tenants (Shanks) were to make royalty payments to the landlords (Landmore) for “inert waste” entering the site.

The question for the court was whether soil which had been brought on to the site for the purpose of capping cells of waste deposited at the site was also “inert waste” and therefore subject to the royalty payment.

Lord Menzies found that the soil was “inert waste”.  In coming to that conclusion, he noted that the exercise was one of construction of a private commercial contact and thus differed from cases in which the courts were construing EU directives or regulations (albeit he noted in passing that the decision he reached was in line with authorities concerned with the interpretation of the EU regime).

The soil came from a construction site on which houses were being built. It was discarded by the developer who paid haulage contractors to take it away and was an unwanted by product caused by the need to provide flat foundations for the houses. Nothing was done to it before it entered the landfill site. As such, Lord Menzies took the view that the soil fell within the ordinary and natural meaning of “waste”. Although it was useful to Shanks, Lord Menzies did not consider that it was appropriate when considering the parties intentions objectively to view the situation from the perspective of the potential user of the material pointing out that anything –or almost anything –can be put to use by someone.

“Having consumed all the meat from a roast leg of lamb, I may discard it into my household rubbish. It is useless to me. My dog may have a different view of its usefulness, and may retrieve it for his own purposes – but despite its usefulness to him, it remains waste.”

The full judgment is available from Scottish Courts here.

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