LANDFILL TAX — preliminary point — whether site remained landfill site within s. 66(a) FA 1996 in whole or in part on waste disposal licence being modified to restrict disposal of waste to part of it
MANCHESTER TRIBUNAL CENTRE
LANCASHIRE WASTE SERVICES LIMITED
- and -
THE COMMISSIONERS OF CUSTOMS AND EXCISE
Mr D Demack (Chairman)
Professor W R Turner BSc FRICS FCIOB FAE HonsFGolS FCI Arb
Sitting in public in Manchester on 21st July 1999 and 15th October 1999
Mr R Thomas of counsel instructed by Messrs Addleshaw Booth solicitors Manchester for the Appellant
Miss C F J Fletcher of the Solicitor’s office of HM Customs and Excise, for the Respondents
© CROWN COPYRIGHT 1999
1) what is the proper interpretation of the said s. 66(a)? and
2) what is the proper construction of the said licence, as modified?
"A1. Waste shall not be deposited on any part of the site other than in accordance with the terms and conditions of this Licence and the details contained in the working plan. The County Surveyor shall be entitled to agree in writing with the Licence Holder [LWS] that the working plan may be varied, and any such variation shall form part of this Licence. The working plan and any such variation shall be carried out.
B1 All facilities, preparatory works and information required by conditions A1, D4, E1, E2, E3, E4, E5, E6, E7 and E8 shall be constructed, undertaken or provided before the deposit at the site of any waste other than that required for the purpose of the preparatory works.
All preparatory works shall be carried out and maintained to the standard set out in the working plan and required by this Licence. On completion all preparatory works must be approved in writing by the County Surveyor before the deposit of any other waste at the site.
The only waste to be used for the preparatory works shall be waste of the types listed in condition C1 (b) and (c) and suitable for the purpose of forming the preparatory works.
B3. All materials used for the construction of the clay cap the manner in which they are used and the supervision of their use shall be in accordance with the Earthworks Specification. [We were told, and accept, that the Earthworks Specification was at some stage replaced by a Quality Assurance Plan, a copy of which was provided to us].
C1 The types of waste which may be deposited on the site are the following wastes:-
(a) household waste provided it has not been treated by fixed plant and equipment for the purpose of pulverisation;
(b) soil, clay, natural sand, and rock;
(c) glass, slate, concrete, brick, tarmacadam and ceramics;
(d) cement, plaster, and plasterboard;
(e) cardboard, paper, textiles/fibres - natural or man-made, and timber (including foliage, shavings, sawdust and products made from these materials);
(f) solid fully polymerised materials;
(g) Non-hazardous metals i.e. iron, copper, zinc, aluminium and its alloys, tin, steel and brass in non-pyrophoric form;
(h) foundry sand;
(i) rubber including waste tyres;
(j) asbestos cement in adventitious quantities only - (less than 5% by volume of any load);
(k) highway sweepings and gully sludges;
(l) empty drums in minimal quantities;
(m) carcasses, contaminated food and offal;
(n) sewage, sewage sludge; and
(o) bentonite drilling sludge.
(p) clinical wastes from the following categories as defined in Waste Management Paper No. 25; Group E, contained in yellow bags with black band.
Provided that, with the exception of the waste types listed in Condition C1(m), clinical wastes from Groups A, B, C and D from commercial and industrial sources shall be strictly excluded.
D4 Waste shall not be deposited on any part of the site until the Licence Holder has notified the County Surveyor in writing of:-
[and the Licence then sets out a number of requirements relating to the persons dealing with operations on site].
E1 Waste shall not be deposited on any part of the site until a site identification board of durable material and finish has been provided and maintained at the site to the specification and at the location shown in the working plan. Safety signs complying with the Safety Signs Regulations 1980 shall be put up and maintained.
For the purposes of this Waste Disposal Licence the following terms are defined thus:
1) ‘Waste’ is defined in the Control of Pollution Act 1974, the Collection and Disposal of Waste Regulations 1988, the Environmental Protection Act 1990 and the Controlled Waste Regulations 1992."
"C1. Waste may only be deposited on site within the area marked green on Drawing No WD/H1/7/1/142. No waste may be deposited on any other area of the site. The types of waste which may be deposited in the green banded area of the site are the following:
a) uncontaminated soils, clays, natural sands and rocks, provided they are in a form and of a nature suitable for restoration;
b) uncontaminated concrete brick, ceramics and tarmacadam provided they are in a form and of a nature suitable for the construction of site roads."
"I refer to your letter of 2nd June 1997 from which I understand you contend that because the Licence does not authorise deposits of waste on parts of the site, those parts of the site are not a landfill site when the restoration takes place and therefore any disposals are not taxable disposals. . . I must advise you that Customs & Excise do not agree with your interpretation of the law.
Section 40 of the Finance Act 1996 provides:
(1) Tax shall be charged on a taxable disposal.
(2) A disposal is a taxable disposal if —
a) it is a disposal of material as waste,
b) it is made by way of landfill,
c) it is made at a landfill site, and
d) it is made on or after 1st October 1996.
(3) For this purpose a disposal is made at a landfill site if the land on or under which it is made constitutes or falls within land which is a landfill site at the time of the disposal.
Section 66 of the Finance Act 1996 defines landfill sites for the purposes of the tax. That definition provides
‘66. Land is a landfill site [at a given time] if at that time -
a) a licence which is a site licence for the purposes of Part II of the Environmental Protection Act 1990 (waste on land) is in force in relation to the land and authorises disposals in or on the land.’
It must be borne in mind, when interpreting the wording of section 66, that it is a definition section, and that the reference to the Licence is for the purposes of identifying the land in or on which a disposal takes place and not the purpose of identifying the disposal itself. The reference to authorisation of disposals in or on land is for the purpose only of distinguishing such a Licence from one which authorises some other form of disposal in relation to a defined area of land, and therefore the fact that the authorisation is subject to conditions does not preclude the Licence from being one which ‘authorises disposals in or on land’.
In other words what section 66 means is that land comprises a landfill site if there is in existence in respect of that land a Licence for the purposes of the Environmental Protection Act 1990 which provides for the disposal of waste by way of landfill (as opposed to incineration, recycling etc.) on that land.
We therefore consider that section 66 applies in a way which results in any disposal of waste on land, in respect of which there is a landfill Licence in force, which meets the other conditions set out in section 40(2) being a taxable disposal, not-withstanding the fact that the waste may be used for restoration purposes."
"s.41(2) The reference here to the landfill site operator is to the person who is at the time of the disposal the operator of the landfill site which constitutes or contains the land on or under which the disposal is made.
s. 69 (2) Where ¾
(a) a taxable disposal is made, and
(b) it is made without the knowledge of the person who is liable to pay tax in respect of it,
that person shall for the purposes of this section be taken to permit the disposal."
"(1) [A ‘waste management licence’ is] . . . a licence granted by a waste regulation authority authorising the treatment, keeping or disposal of any specified description of controlled waste in or on specified land . . .
(3) A Licence shall be granted on such terms and subject to such conditions as appear to the waste regulation authority to be appropriate and the conditions may relate ¾
(a) to the activities which the licence authorises, and
(b) to the precautions to be taken and works to be carried out in connection with or in consequence of those activities;
and accordingly requirements may be imposed in the licence which are to be complied with before the activities which the licence authorises have begun or after the activities which the licence authorises have ceased.
(12) In this Part ‘licence’ means a waste management licence and ‘site licence’ and ‘mobile plant licence’ mean, respectively, a licence authorising the treatment, keeping or disposal of waste in or on land and a licence authorising the treatment or disposal of waste by means of mobile plant."
And, for completeness, we must add s.37(1)(b) of the 1990 Act:
"(1) While a licence issued by a waste regulation authority is in force, the authority may, subject to regulations under section 35(6) above and to subsection (3) below, ¾
(b) on the application of the licence holder accompanied by [the charge prescribed for the purpose by a charging scheme under section 41 of the Environment Act 1995,] modify the conditions of his licence to the extent requested in the application."
Submissions for the Commissioners
Submissions for LWS
a) there must be a licence in force which is a site licence for the purposes of the 1990 Act; and
b) the site licence must authorise disposals in or on that land.
"A landfill site will be a site for the purposes of the tax if there is a Licence or resolution authorising disposals in or on the land under
- Part II of the Environmental Protection Act 1990 in Great Britain;
If you operate such a landfill site, any waste deposited in it, including waste which you have produced, will be liable to tax unless it is exempt from tax. If a Licence no longer authorises disposals of waste at the part of your site which it covers, waste deposited there is not liable to tax. An example of this is when the Licence conditions have changed to cover only site restoration."
1) that a licence must be in force which is a site licence for the purposes of the 1990 Act; and
2) the site licence must authorise disposals in or on that land.
1) that the hearing of the other matters in dispute identified in LWS’s skeleton argument filed on 6 July 1999 is adjourned sine die with liberty to either party within 60 days of the release date of our decision on the preliminary issue to apply for the appeal to be relisted, and that any such application include the grounds and reasons on which the relisted appeal is to be argued; and
2) that the parties are at liberty to apply for further directions
19 November 1999