England and Wales High Court (Chancery Division) Decisions

You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Commissioners of Customs & Excise v Parkwood Landfill Ltd. [2002] EWHC 47 (Ch) (29th January, 2002)
URL: http://www.bailii.org/ew/cases/EWHC/Ch/2002/47.html
Cite as: [2002] EWHC 47 (Ch)

[New search] [Printable RTF version] [Help]

Commissioners of Customs & Excise v Parkwood Landfill Ltd. [2002] EWHC 47 (Ch) (29th January, 2002)

		Neutral Citation Number: [2002] EWHC 47 (Ch)
		Case No: CH/2001/APP558

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
ON APPEAL FROM VAT AND DUTIES TRIBUNAL

Royal Courts of Justice
Strand, London, WC2A 2LL

29th January 2002

B e f o r e :

THE VICE-CHANCELLOR
____________________

THE COMMISSIONERS OF CUSTOMS & EXCISE
Appellants

- and -

PARKWOOD LANDFILL LIMITED
Respondents

____________________

Miss Philippa Whipple (instructed by Solicitor for Customs & Excise ) for the Appellants
Mr. Richard Barlow (instructed by Messrs Narbarro Nathanson) for the Respondents
Hearing date : 16th January 2002
____________________

HTML VERSION OF HANDED DOWN JUDGMENT
____________________

The Vice-Chancellor :

This appeal from the determination of the VAT and Duties Tribunal (Mr J.D.Demack (chairman), Mr C.B.H.Gill and Mr D.Wenn) (“the Tribunal”) concerns the proper interpretation and application of Part III of the Finance Act 1996 by which a liability to landfill tax was imposed on landfill site operators in respect of the disposal of waste. The charge was introduced against the background of concern as to the disposal of waste demonstrated in the Waste Directive of the Council of the European Communities (75/442/EEC), The Environmental Protection Act 1990 and the White Paper entitled “Making Waste Work” (Cm 3040) presented to Parliament in 1995 by the Secretaries for State for the Environment and of Wales.

The White Paper noted that landfill accounted for most (70%) of the waste going to final disposal. It proclaimed the Government’s intention to reduce that proportion to 60% by 2005 by the measures subsequently described. One of those measures was to promote the increase of recycling and reuse. Another was the introduction of a landfill tax. It described the central purpose of the landfill tax as to ensure that landfill costs reflect environmental impact. It was intended thereby to encourage business and consumers, in a cost effective and non-regulatory manner, to produce less waste, to recover value from more of the waste that is produced and to dispose of less waste in landfill sites. It was envisaged that the landfill tax would be passed on in full to waste producers, making them aware of the true costs of their activities and ensuring that, wherever practicable, polluters should pay for the costs they impose on the environment.

By ss.39 and 40(1) Finance Act 1996 landfill tax, under the care and management of the Commissioners of Customs & Excise (“the Commissioners”), is charged on a taxable disposal. The person liable for the tax is the landfill site operator at the time of the disposal (S.41). S.42 prescribes the amount of the tax by reference to the weight of the amount disposed of. Ss.43 to 46 provide for certain exemptions. Ss.47 to 63 contain various administrative provisions.

The provisions central to the problems which arise on this appeal are to be found in ss.40(2), 64 and 65(1). They are in the following terms:

“40 Charge to tax

(1) ....

(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.

.......

64 Disposal of material as waste

(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.

(2) The fact that the person making the disposal or any other person could benefit from or make use of the material is irrelevant.

(3) Where a person makes a disposal on behalf of another person, for the purposes of subsection (1) and (2) above the person on whose behalf the disposal is made shall be treated as making the disposal.

(4) The reference in subsection (3) above to a disposal on behalf of another person includes references to a disposal -

(a) at the request of another person;

(b) in pursuance of a contract with another person.

65 Disposal by way of landfill

(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

(b) it is deposited under the surface of land.

[(2)-(8)]

I should also refer to s.70(1) which, unless the context otherwise requires, provides that “material means material of all kinds, including objects, substances and products of all kinds”.

This case concerns the deposit of material at a landfill site at Parkwood Road, Neepsend, Sheffield. The site operator and person liable for any landfill tax is the respondent Parkwood Landfill Ltd (“Parkwood”). The material in question emanates from the highway works of the Sheffield City Council (“the Council”). The relevant facts and the issue which has arisen were summarised by the Tribunal in the following terms:

“The facts of the instant case are that [the Council] on payment of a fee disposes of unwanted material from its highway works to [Parkwood Recycling Ltd (“Recycling”)]....., at whose plant it is crushed, sorted, mixed with other material, and graded before being divided into saleable materials and those which are sent to landfill as having no use. Amongst the saleable materials are aggregates and fines, some of which [Recycling] sells to [Parkwood] which uses them at its [landfill] site for road-making and landscaping purposes......In those circumstances, [the Commissioners] contend that [Parkwood] is liable to landfill tax on the recycled material deposited on its site since [the Council] has discarded it as waste. In contrast, [Parkwood] maintains that the recycled material is disposed of by [Recycling] so that there is no liability to tax on it. We are required to decide which of those contentions is correct.”

The Tribunal upheld the contention of Parkwood. Accordingly it allowed its appeal from the decision dated 18th November 1999 of the Commissioners on the review of assessments for landfill tax for the period 1st December 1997 to 26th February 1999 in the aggregate sum of Ł30,181. This is the appeal of the Commissioners from that decision. Before turning to the submissions of the parties to the appeal it is necessary to explain the facts and the decision of the Tribunal in more detail.

Until 1998 the Council operated its own landfill sites. It was to those sites that most of the surplus material produced by its highways department was taken for disposal as landfill. Parkwood was and is a wholly owned subsidiary of Parkwood Group Ltd (“Group”). On 17th August 1998 the Council entered into an agreement (“the Shareholders Agreement”) with Group for the provision of recycling facilities at Salmon Pastures, Sheffield through a joint venture company, the share capital in which should be held as to 81% by Group and 19% by the Council.

It was recited in the Shareholders Agreement that

“(B) Parkwood and the Council have agreed to participate in a Regional Challenge initiative promoted and funded by the European Regional Development Fund one of the principal purposes behind which is to create and sustain employment in designated areas through the enhancement of environmentally acceptable recycling projects.

(C) Parkwood and the Council propose that the Company should be used as their joint venture vehicle for the purpose of establishing and managing an environmentally acceptable waste recycling business for the purpose of assisting the Council fulfil its recycling obligations (pursuant to sections 48 of the Environmental Protection Act) whether or not the venture is successful in obtaining ERDF grant funding.

(D) Accordingly, Parkwood and the Council have agreed to subscribe for shares in the Company and to enter into certain commitments and to regulate their rights in relation to the Company in the manner hereinafter appearing.”

Recycling is the company established pursuant to the Shareholders Agreement.

The Shareholders Agreement also provided that the Council and Group should procure, as they did, that Recycling should carry on the business of

(a) “receiving, sorting recycling and if not recyclable in a commercially viable manner (as determined in its sole discretion by the Board) disposing (in an environmentally acceptable manner) of construction and other related waste (as the Board shall from time to time determine)”;

(b) “recycling and reprocessing such of the waste received by the Company as may be appropriate into products or material for sale on the open market where considered by the Board (in its sole discretion) viable to do so”; and

(c) “to enter into a waste recycling contract or contracts with the Council in respect of waste generated by the Council's works, markets and recreation departments on such terms as the Board shall deem appropriate”.

Pursuant to the latter provision, also on 17th August 1998, the Council concluded an agreement with Recycling pursuant to s.48 Environment Protection Act 1990 (“the Recycling Agreement”). Waste was defined therein as

“the waste matter generated by the Council's Works and Highways departments and waste matter that comes into the control of the Council in its capacity as a Waste Collection Authority (pursuant to section 48 EPA) not being Green Waste as defined in an agreement of even date herewith and made between the parties hereto) and which waste the Council is (pursuant to section 48(2) EPA) permitted to dispose of for recycling”

The Council thereby agreed to deliver to Recycling in each calendar year between 35,000 and 50,000 tonnes of waste for recycling on the terms thereof (cl.3). Property in the waste so delivered passed to Recycling (cl.6). The Council paid to Recycling a fee per tonne of waste so delivered (cl.10). In consideration of receipt of that fee Recycling was to use the waste so delivered “for the purposes of recycling the same” (cl.7). It was also provided that the public might, as they subsequently did, deposit waste for the purpose of recycling or disposal (cl.8). By clause 10.6.2 it was provided that

“any VAT or other duties (including but not limited to landfill tax) and taxes payable in respect of sums due under this agreement shall be payable by the Council in addition.”

The Tribunal recorded that in the first few months of operation 75% to 80% of the waste received by Recycling was deposited by the Council. The proportion of waste derived from the Council had gone down to a little under 50% over the twelve months prior to the hearing by the Tribunal in April 2001.

In paragraphs 22 to 27 of their decision the Tribunal described the process of recycling in greater detail. I should record the following findings:

(a) “The materials deposited at the recycling plant are first divided into waste and recyclable material. Those in the latter category are recycled into aggregates and fines. Aggregates are concrete and other materials sorted, crushed and mixed so as to form mixed aggregate in pieces of 70mm, or less, in diameter. Fines are a soil like material produced by sorting and mixing suitable materials to form a product which has the appearance and many of the characteristics of soil, including the ability to support the growth of plants, and consist of pieces of material of 12mm, or less, in diameter. (That diameter has now been increased to 25mm or less). Recycling sells the aggregates and fines it produces from the recycling process at an average price of Ł2.50 per tonne.” (para 22)

(b) “The Council came to know what material would prove suitable for, and be accepted by, Recycling for recycling. Consequently, it now dispatches to Recycling only material which it knows will be accepted for recycling, i.e. loads consisting entirely, or almost entirely, of concrete, brick, tarmac and soil. The Council sends other material produced by its works and highways department which does not satisfy the criteria laid down by Recycling straight to landfill. Recycling charges depositors between Ł5.50 and Ł6.50 per tonne of material deposited depending on quality but, in view of the large quantity the Council provides, it is given a substantial discount on those rates.” (para 23)

“After a load of material has been accepted by Recycling, it is first sorted by hand to ensure that true waste materials such as plastic, wood and paper are removed from it. They are dispatched to landfill. Brick and tarmac are also removed by hand as they too are unsuitable for recycling purposes. (Crushed brick is however suitable as a base for informal footpaths, and crushed tarmac (planings) is predominately used for undersurfaces of footpaths. Consequently, there is a market for both materials of which Recycling takes advantage). The remaining material is then subjected to primary screening over the first screening station. That which is too big to pass through the screen is passed through the primary crusher, and is then fit for use as a coarse road sub-base. The material which has passed through the screen is separated into aggregates and fines, the former consisting of larger lumps of material, and the latter material not more than 12mm in diameter (since September 2000 25mm), having the appearance of soil. (The quality of the aggregates produced by Recycling is now so high that it has received accreditation as MOT type 1 by the Department of Transport, i.e. it is accepted as suitable for use in highway construction: and the fines produced contain sufficient soil to sustain plant growth). Fines are mainly used for intermediate blinding, but some are applied in final site restoration work.” (para 25)

(c) “For landscaping and road making purposes, PL can purchase and use either aggregates and fines formed from recycled material or from freshly quarried minerals; both are equally suited to the purpose.” (para 27)

It is not disputed that the definition of material contained in s.70(1) applies to the subject matter of the disposal which gave rise to the assessments in question. Equally it is common ground that such material ended up in the landfill site operated by Parkwood on or after 1st October 1996. Thus there was a taxable disposal of such material if, but only if, in the words of s.40(2), it can also be said of such disposal that

“(a) it is a disposal of material as waste,

(b) it is made by way of landfill,”

The conclusion of the Tribunal was that there was no disposal of material “as waste” because those words connote a disposal of material on the grounds that it is useless to anyone. Thus there was no disposal by the Council to Recycling because the material was susceptible to recycling and there was no disposal by Recycling to Parkwood because the material, having been recycled, was of use and value to both Recycling and Parkwood. For this reason the Tribunal considered that s.40(2)(a) was not satisfied so that there could be no liability to landfill tax. They said (paras 55 and 56):

55...“Undoubtedly the Council has no need of the material delivered to Recycling: it does not require it in the form in which it then exists. That is far removed from saying that it is useless, (defined in the shorter Oxford English Dictionary as being of no use). If it were of no use, in our judgment, it could not be recycled. As it is capable of being, and is in fact, recycled, we conclude that the material in question is not disposed of as useless by the Council, i.e. in landfill tax terms as waste. That conclusion applies equally to material disposed of by others at the Salmon Pastures site, for were it waste it would cost them more to dispose of it to landfill. As we perceive it, it is necessary to distinguish between material which has no use whatsoever or is disposed of by a person as having no such use, and material which is incapable of use in the form in which it exists but is of use in a form into which it can be converted.

56.....Consequently, we conclude that the disposal with which we are concerned is not that by the Council to Recycling. In our judgment, the relevant disposal is that of Recycling to PL. There is no question of the material comprised in that disposal being waste, so that the conditions required for landfill tax to be imposed are not satisfied.”

The Commissioners contend that the Tribunal was wrong. They submit that the Tribunal failed properly to apply certain dicta to which they referred and gave no or inadequate weight to the provisions of s.64(1) and (2).

With regard to the condition imposed by s.40(2)(b) the Tribunal concluded that although the material was used by Parkwood at its site for landscaping and blinding (viz.screening) it had been disposed of by way of landfill because of the expanded definition of that term in s.65(1). It was not disputed that the terms of that subsection had been literally complied with. In the view of the Tribunal any other conclusion would make “a nonsense of the legislation”. Parkwood contends that the Tribunal was wrong in this respect. It submits that the material was changed by the process of recycling. It contends that the material disposed of by way of landfill must be the same material as was disposed of as waste.

The Tribunal considered that the process of recycling gave rise to a change in the material. They observed that the legislation did not provide that such a change meant that the material ceased to be waste. But they considered that the change confirmed their view that the relevant disposal was not that made by the Council to Recycling. They said (para 60):

“The evidence adduced clearly indicates that the aggregates and fines supplied by Recycling are just as well fitted to the tasks of road making and landscaping as are newly quarried materials which PL would have to use were the materials provided by Recycling not available. It appears to us that, in those circumstances, it was not the intention of the legislature to tax recycled material of the sort produced by Recycling, even when disposed of to landfill. In the present case, we are quite satisfied that the recycled material produced by Recycling differs from the material delivered to it by the Council, so that again we find that the relevant disposal of material for the purposes of s. 40 is not made by the Council.”

This conclusion is disputed by the Commissioners. They submit that the Tribunal took too narrow a view of what is meant by disposal.

Finally the Tribunal dealt with the fact, as they thought, that the Council derived financial benefit from its disposal to Recycling. The benefit they found arose from the fact that it would cost the Council more to dispose of the material to persons or sites other than Recycling. In addition they noted the ability of the Council to share in the profits of Recycling. They concluded from these facts that the disposal by the Council was not of waste. They said (para 61):

“We are quite satisfied that the Council obtains a financial benefit from its disposal of materials to Recycling, whether looked at as the simple disposal of material delivered for recycling or considered in combination with the Council's entitlement to dividends paid out of profits made by Recycling. The evidence clearly shows that it is more expensive for the Council to dispose of materials to landfill sites than to Recycling, so that, even without its dividend entitlement, it derives some financial benefit from disposals to Recycling. That the Council must pay however it divests itself of surplus highway material we accept, but that is nothing to the point in the present context. Again, we find that the Council does not dispose of the material as waste.”

The Commissioners submit that this conclusion also was wrong in law. They contend that the Tribunal failed to take proper account of the provisions of s.64(2).

Accordingly there are four issues which arise from the decision of the Tribunal, namely

a) whether it is a necessary condition for “a disposal of material as waste” that the material is of “no use whatsoever” (para 14 above);

b) whether the Council derived financial benefit from its disposal to Recycling and, if so, whether it precluded that disposal being a “disposal of material as waste” (para 17 above);

c) whether the process of recycling gives rise to any relevant change in the material and if so what (para 16 above);

d) whether the use to which Parkwood put the material precluded its recognition as a disposal by way of landfill (para 15 above).

I will deal with them in that order. As will be seen there is common to all of them the problem of ascertaining what is a “disposal”.

The first of those issues concerns the meaning of the word “waste” when used in the context of Part III Finance Act 1996. The Tribunal relied on dicta of Butler-Sloss LJ in Cheshire County Council v Armstrongs Transport (Wigan) Ltd [1995] Env.LR 62 and of Mr Peter Crawford QC in Berridge Incinerators v Nottingham County Council (unreported). Before I refer to them it is convenient to consider the context in which the landfill legislation was enacted.

I have already referred to the Council Directive (75/442/EEC). In its original form it defined “waste”, in Art.1(a) as any substance or object which the holder disposes of or is required to dispose of pursuant to the provisions of national law. By Art.3 member states were required to take appropriate steps to encourage, inter alia, the recycling of waste. That directive was amended in 1991 by Council Directive 91/156/EEC. The new definition of waste encompassed categories of substances or objects specified in the Schedule “which the holder discards or intends or requires to discard”. By Art. 3.1(b) member states were required to take appropriate measures to encourage the recovery of waste by means of, inter alia, recycling. It was Art 15 of that Directive which gave legal effect to the “polluter pays” principle. In both its original and amended form the Directive gave to the word “disposal” a meaning much wider than a transfer of the property in the material in question.

The definitions in the Directives were echoed in the Environment Protection Act 1990. As originally enacted in s.75(1) waste included “scrap metal or any effluent or other unwanted surplus substance arising from the application of a process” and “any substance which requires to be disposed of as being broken, worn out, contaminated or otherwise spoiled”. S.75(2) introduced a rebuttable presumption that “anything which is discarded or otherwise dealt with as if it were waste” is waste. S.75 was amended by Environment Act 1995 to reproduce the amendment introduced by the amending Directive. In neither its original nor amended form did the Act contain any definition of the word “disposal”.

In Cheshire County Council v Armstrongs Transport (Wigan) Ltd [1995] Env.LR 62 the court was concerned with whether an offence had been committed under s.30 Control of Pollution Act 1974. The definition of waste was the same as that contained in s.75(1) Environment Act 1990 as originally enacted. The material in question was concrete removed from a demolition site and deposited for the purposes of crushing. The magistrate acquitted the defendant on the ground that the material was not waste. This was upheld by the Divisional Court in which the judgment was given by Butler-Sloss LJ. At page 65 she said

“It [viz waste] has to be that which is disposed of, discarded, got rid of, not needed any more, by the person who is in the process of discarding it or disposing of it. It is to be of no further use to that person who has possibly produced but is certainly discarding the material.”

It was not suggested that to be waste it was necessary that the material in question should be of no use to any other person.

Berridge Incinerators v Nottingham County Council is a decision of Mr Crawford QC sitting as a deputy judge of the Queen’s Bench Division. I have only been referred to the quotations from that judgment contained in the unreported decision of the VAT and Duties Tribunal in ICI Chemicals and Polymers Ltd v Commissioners of Customs & Excise 28th October 1998. As so reported, Mr Crawford referred to the truism that one man’s waste is another man’s raw material. After illustrating the truism he continued

“In my judgment, the correct approach is to regard the material from the point of view of the person who produces it. It [viz, waste] is something which is produced as a product or even as a by-product of his business, or it is something to be disposed of as useless.”

In their application of the two dicta to which I have referred the Tribunal went further than either justified. In the passage I have quoted in paragraph 14 above the Tribunal held that to constitute waste the material must have no use whatsoever. That is not a condition to be found in either dictum. Further, the Tribunal evidently considered that suitability for recycling precluded recognition of the material as waste. If that were the case then the meaning of “waste” in the Directives would be substantially different to its meaning in the legislation concerning waste in England. I do not suggest that the court is bound to construe the latter to accord with the former for Part III of Finance Act 1996 was not enacted to give direct effect to the community obligations of the UK arising under the Directives. But they are all operative in the same general field and no reason was suggested why Parliament should have intended that a different meaning should be attributed to the word waste in Part III Finance Act 1996.

The Tribunal made no reference in their conclusion on this point to the provisions of s.64(1). This defines the expression “disposal of material as waste” as one where “the person making the disposal does so with the intention of discarding the material”. Thus the meaning of waste is directly linked to the meaning of discard and that is linked to the intention of the person making the disposal. Further in ascertaining whether the person making the disposal intended to discard the material it is irrelevant that that or any other person could benefit from or make use of the material, s.64(2). Accordingly the discussion in paragraphs 55 and 56 of the Tribunal’s decision, quoted on paragraph 14 above, appears to me, with respect, to be beside the point.

The relevant question is whether when delivering the material to the premises of Recycling the Council intended to discard it, that is cast aside, reject or abandon it. That is a question of fact. But the only inference which can be drawn from the facts as found by the Tribunal, in particular paragraph 55 of the decision, is that the Council did so intend. As counsel for the Commissioners so graphically put it “they wished to be rid of it”. There is no reason to draw any other inference with regard to the material delivered to Recycling by members of the public. It follows that all material delivered to Recycling whether by the Council or others was subject to a disposal of material as waste and all recycled material supplied by Recycling to Parkwood and others was derived from that material.

My conclusion on the first issue largely resolves the second. It is provided by s.64(2) that benefit to the Council from the material is irrelevant. It must follow that benefit to the Council in the form of either a quantity rebate against the amount charged by Recycling for accepting the material or a dividend from Recycling is irrelevant. In those circumstances it is unnecessary to consider whether the suggested benefits are sufficiently derived from the material subject to the disposal under consideration. Accordingly I conclude that the Tribunal was wrong on this issue as well. It is not suggested that any member of the public delivering material to Recycling derived any benefit therefrom, but to the extent that he did the same conclusion must follow.

I turn then to the third issue. I have quoted the conclusion of the Tribunal on this issue in paragraph 16 above. As the Tribunal recognized there is nothing in Part III Finance Act 1996 to suggest that recycled material ceases on that account to be waste. It considered that the change in the material effected by the process of recycling meant that the relevant disposal was not made by the Council. I do not find it easy to determine the reason why the Tribunal reached that conclusion.

Counsel for the Commissioners suggested that the Tribunal was wrong. She pointed to the Waste Directive and the decision of the European Court of Justice in Inter-Environment Wallonie ASBL v Region Wallonne [1997] ECR I-7411. In paragraph 31 of the judgment of the Court it was recognized that the definition of waste in the Waste Directive does not exclude substances and objects which are capable of economic reutilization. To the same effect is the judgment of the European Court of Justice in ARCO Chemie Nederland v Minister van Volkshuisvesting etc (ECJ C-418/97). Counsel for the Commissioners also relied on the judgment of Lord Woolf LCJ in Attorney-General’s Reference [2001] D AER 71 in which he recognised that the relevant substance was “waste” though used by spreading on fields as a fertiliser.

The only reason why a change in the material should matter is if it is a necessary condition for the existence of a taxable disposal that all four conditions are satisfied by the same person or, as Parkwood submits, in respect of the same material. It might be objected that in the case of more than one disposal it should be plain that the same material was subject to each of them. I was at one stage attracted by this proposition but, on further reflection, I do not consider that it could make any difference on the facts of this case. There can be no doubt that whatever the original source of the material, that is whether it was delivered to Recycling by the Council or a member of the public, it was the subject matter of a disposal as waste. In the nature of such material it would be absurd if liability depended on being able to identify the particular source provided that it is clear that, whatever the source, the material had been subject to a disposal as waste. The argument for Parkwood appears to ignore this fact. I express no view as to what would be the situation if only some of the recycled material had been so derived.

This conclusion is consistent with the decision of Moses J in Commissioners of Customs & Excise v Darfish Ltd (20th March 2000 unreported). In that case Darfish was a landfill site operator. Its subsidiary DNS contracted with two independent companies to remove earth material and transport it within sites they were developing. The material was transferred to the land of Darfish for storage but later some of it was used on its landfill site. The Tribunal found that the deposit on the landfill site had been carried out by DNS as agent for Darfish and that Darfish had not intended thereby to discard it. Accordingly the Tribunal concluded that there was no disposal of the material as waste.

Moses J disagreed. He accepted that there was a deposit of the material on Darfish’s landfill site on behalf of Darfish within s.65(1) so that there was a disposal by way of landfill within s.40(2)(b). But in respect of the initial removal of the material he considered that DNS was acting on behalf of the independent companies who owned the land from which it was removed. Accordingly it was their intention which mattered in determining whether the disposal was as waste. As there had been no consideration of what it was he remitted the matter to the Tribunal for further consideration.

In paragraph 19 of his judgment Moses J said:

“I do not think that the reference to "disposal" in the Act can be confined to the moment of deposit. The reference to "deposit" in section 65 is for the purpose of interpreting one of the conditions necessary for chargeability under section 40(1), namely section 40(2)(b), and, of course, identifying whether, and if so who, was the landfill site operator. But the concept of making a disposal in section 64(1) seems me to connote more than the mere deposit of the material. Disposal seems to me, in the context of these provisions, to connote the parting with or the alienation of something. It is a term wider than discarding, since the statute contemplates that someone may dispose of something without discarding it leading to the conclusion that the material was not disposed of as waste. It is also a term wider than deposit, otherwise there is no reason why the statute does not use the word "deposit" throughout. Disposal will include, but not be confined to, any of the processes of removal, transport and deposit. It must include deposit because it is the deposit which triggers the tax and also identifies the time when the landfill site operator must be identified as such, but disposal is not limited to the process of deposit.”

It is clear from this passage that Moses J treated the disposal as waste as different from the disposal by way of landfill; though both were effected by DNS it acted on behalf of the two independent companies in respect of the former but on behalf of Darfish in respect of the latter.

Accordingly I conclude that any change in the material effected by the process of recycling did not result in either changing what was waste into something else or nullifying the effect of the disposals as waste by the Council and members of the public to Recycling.

I turn then to the fourth issue. I agree that on a literal construction of s.65(1) there was a disposal by way of landfill. The condition is expressed in the passive. That which must be disposed of by way of landfill is not waste but material subject to a disposal as waste. It matters not by whom the disposal is made. As Moses J pointed out in Darfish the requirement of s.40(2)(b) refers to a point of time not necessarily the same as that at which the disposal as waste takes place. Likewise the disposal as waste may in accordance with the terms of the contract take place otherwise than at the landfill site. These considerations indicate that the “disposal” for the purposes of the Act is more than the legal transaction by which it is effected or property in the material passes. Provided that the material can be identified as having been subject to a disposal as waste I can see no basis on which it is possible to exclude material which was waste but has been recycled before a disposal by way of landfill.

There remains the underlying question what is comprehended in the word “disposal”. For the reasons I have given it cannot be limited to the legal transaction by which property in the material passes. S.64(3) and (4) extend the identity of the person making the disposal beyond the ambit of principal and agent. Thus it is envisaged, as Moses J pointed out in Darfish, that there may be more than one person making the disposal. A disposal may be made in more than one place, at more than one time and by more than one legal transaction. In the absence of clarification in further legislation the proper application of s.40(2) will have to be ascertained on a case by case basis.

For all these reasons I differ from the Tribunal. In my view that which was deposited on the landfill site of Parkwood was the subject of a disposal which complied with all four conditions required by s.40(2). Accordingly I allow the appeal.