United Kingdom VAT & Duties Tribunals (Excise) Decisions

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Cite as: [2007] UKVAT(Excise) E01065, [2007] UKVAT(Excise) E1065

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Jeff Potts v Revenue & Customs [2007] UKVAT(Excise) E01065 (20 September 2007)

E01065

EXCISE DUTY – RED DIESEL – waste disposal company subcontracting a farmer to use his tractor on public road to transport brewery effluent from brewery to farms – effluent spread on fields – whether tractor used on public roads solely for purposes relating to agriculture – No – Appeal dismissed – Assessment upheld – penalty withdrawn.

MANCHESTER TRIBUNAL CENTRE

JEFF POTTS Appellant

- and -

HER MAJESTY'S REVENUE and CUSTOMS Respondents

Tribunal: MICHAEL TILDESLEY OBE (Chairman)

WARREN SNOWDON JP (Member)

Sitting in public in North Shields on 16 July 2007

Geoff Dickenson, Managing Director of Northern Disposal Services Limited for the Appellant

Johnathan Cannan, counsel instructed by the Acting Solicitor for HM Revenue & Customs, for the Respondents

© CROWN COPYRIGHT 2007

DECISION

The Appeal

The Appellant was appealing against the Respondents' decision on review to issue an assessment in the sum of £9,995 and a penalty of £250 for the unauthorised use of red diesel in a vehicle.

The Dispute

The Appellant was a farmer who was sub-contracted by Northern Disposal Services Limited to use his tractor on a public road for the removal and transport of effluent from a brewery to his farm and a neighbouring farm where the effluent was spread on agricultural land. The Appellant used red diesel in his tractor when transporting the effluent.

The Respondents contended that he was not entitled to use red diesel because the tractor was not used solely for purposes relating to agriculture. In those circumstances the Appellant was liable to a penalty for the unauthorised use of red diesel and to repay the rebate of duty on red diesel for the period of unauthorised use. In respect of the latter the Respondents raised an assessment of £9,995 for the period 1 July 2003 to 31 March 2006.

The Appellant contended that the Respondents had "moved the goalposts". Mr Dickenson of Northern Disposal Services Limited asserted that the arrangements set up to transport the effluent followed advice given to him by the Respondents in 2000. Further he contended on behalf of the Appellant that the effluent was not waste because it was being used as soil fertiliser as part of lawful spreading practices. Thus in all the circumstances the tractor was being used solely for purposes relating to agriculture.

After hearing the Appellant's evidence the Respondents withdrew the penalty of £250 against the Appellant because he had been acting under the advice of Mr Dickenson. Thus the assessment of £9,995 formed the sole matter on Appeal. For the avoidance of doubt no right of appeal existed against the Respondents' seizure of the Appellant's tractor as it was restored to him immediately without conditions.

In this Appeal we were required to determine three disputed matters:

(1) Had the Respondents "moved the goalposts"?

(2) Did the effluent constitute waste material?

(3) Did the Appellant use his tractor when transporting the effluent solely for purposes relating to agriculture?

The Law

Section 12(2) of the Hydrocarbon Oils Duties Act 1979 (hereinafter referred as the 1979 Act) prohibits the use of red diesel as fuel for a road vehicle and or the taking in of red diesel into a road vehicle as fuel unless an amount equal to the rebate on red diesel has been paid to the Respondents.

Section 12(2) of the 1979 Act does not apply to an excepted vehicle which includes an agricultural tractor which is defined by paragraph 2(2) schedule 1 of the 1979 Act as so far as is relevant for the purposes of the Appeal:

"…. means a tractor used on public roads solely for the purposes relating to agriculture ….."

Where there has been a contravention of section 12(2) of the 1979 Act, the Respondents are entitled under section 13(1A) of the 1979 Act to raise an assessment of the amount equal to the rebate on the red diesel against any person who used the red diesel in a road vehicle.

Under section 16(5) of the Finance Act 1994 the powers of the Tribunal on an Appeal against an assessment include the power to quash a decision and substitute its own decision.

The definition of agricultural tractor in the 1979 Act has been considered by the High Court in Regina v Commissioners of Customs and Excise ex parte England Environmental Limited [1996] Unreported Case Number: C0/2802/95, and two VAT and Tribunal decisions Bryan & Andrew Thomas v Commissioners of Customs & Excise [2005] (Decision E00875) and Renfrewshire Council v Her Majesty's Revenue and Customs [2006] (Decision E00963)

In the England Environmental case the Applicant company entered into a contract with another company, Grovehurst Energy Limited, to dispose of paper effluent sludge cake to agricultural land. The contract involved the Applicant company using tractors fuelled by red diesel to collect trailers loaded with the sludge which were taken to a waste disposal facility and then to farms where the sludge was spread or injected into the ground. The spreading of sludge was done to benefit the agricultural land and was thus exempted from waste management licensing under the relevant regulations. The Applicant company argued that it was entitled to use red diesel in its tractors because they were being used for agricultural purposes. Lord Macpherson of Cluny dismissed the Applicant's argument:

"The Applicants' argument before me was perfectly clear and simple. They say that the phrase relating to agriculture is an elastic one and that the whole operation done by the applicants is related to agriculture because these tractors were involved in the transportation and application of nutrients to improve the fertility of the land. The haulage part of the operation can be and is a use for purposes relating to agriculture, say the applicants, even if not itself an agricultural use. All the material has to finish up on or in the soil and thus the whole operation is related to agriculture. Once the sludge is on the trailer at Grovehurst premises, for disposal on agricultural land, the applicants are bound by their contract to ensure that it is thus dealt with so that the purpose from the factory to the field is solely an agricultural purpose.

I am unable to accept the applicants' argument. The respondents are, in my judgment, right when they say that the applicants' construction of the schedule virtually ignores the operation of the word "solely". Even if the primary purpose for which the tractors were being used was related to agriculture this would not, in my judgment, be enough. But I accept the respondents' submission which was that upon analysis the primary purpose for which the tractors were being used was to collect, transport and dispose of waste pursuant to a commercial contract for which the applicant was paid. In the course of that business the tractors were being used to perform haulage tasks for which a lorry could equally well have been used. These vehicles were on the road for purposes relating to the removal of industrial waste from a factory and for purposes relating to the business of the applicants, namely, transporting or removal or recycling of industrial waste. The primary emphasis is on waste disposal"

The facts of the Tribunal case, Bryan & Andrew Thomas, were that Eden Vale Creamery contracted with haulage contractors to remove their waste product from the factory and to spread it on agricultural land belonging to some 35 to 40 farms within a radius of ten miles. They paid £3 per load to the farmers. The haulage contractors subcontracted the work to the Appellants who carried on the businesses of agricultural contractors and livestock farmers and used tractors fuelled by red diesel to transport the waste product. The Tribunal decided that the tractors were not being used solely for agricultural purposes and dismissed the Appeal.

The Renfrewshire case concerned the use of a tractor by a local authority for grass cutting and removing litter from the site. The Commissioners for HM Revenue and Customs contended that the local authority could not use red diesel in the tractor because it was not being used solely for purposes relating to horticulture. The Tribunal allowed the Appeal:

"On the material presented to us and our analysis of that material, we are of the view that the tractor was plainly being used on a public road for a purpose or purposes relating to horticulture. The key phrase is purposes relating to. That is plainly broader than horticultural purpose or agricultural purpose. The use and purpose must have a relationship or connection with horticulture. It was common ground between the parties that grass cutting was a horticultural activity. It is obvious from the factual background in this appeal that the removal of the fly tipping materials was part and parcel of the grass cutting operation. ….. Each component part of the operation, however one dissects it, was fulfilling the same purpose namely carrying out and completing the grass cutting operation. That was the reason tractor was being used. That was the object to be attained. To attain that object fly tipping materials had to be removed. The fact that the trailer contained grass cuttings and a mower as well as fly tipping materials is eloquent of that conclusion. The sole purpose of uplifting and removing these items related to the activity of grass cutting which is accepted in this appeal to be a horticultural activity.

….. It seems to us that it does not matter how many purposes into which the use of the tractor on a public road can be dissected provided that they all relate to horticulture, agriculture and/or forestry as the case may be. Here, they all relate to the horticultural activity of grass cutting. When a tractor is being used on a public road, it plainly cannot perform an agricultural activity such as ploughing or harrowing. It must either be travelling on its way to a site to perform some such activity or its use on the road must have some relationship or connection with such an activity. How close or direct that relationship must be will be determined by the facts and circumstances of each case. …. If the use also has a purpose which has no such relationship with purposes relating to agriculture etc., then that will not be use by an excepted vehicle. Use for purposes solely relating to agriculture etc. will not have been established.

The Tribunal in the Renfrewshire case was critical of the approach adopted by the Tribunal in Bryan and Thomas:

"In Bryan, the Tribunal expressed the view that the operation carried out was primarily waste disposal and not solely agricultural; they stated that "the activity must be "solely" agricultural". With respect to that Tribunal that formulation is not the statutory test. The Tribunal placed reliance on the necessity to remove the waste and the payment to the farmers to persuade them to take the slurry. These are factors unrelated to the question "Is the tractor being used on a public road solely for purposes relating to agriculture". The answer to that question surely is (a) the tractor is being used to (i) take fertiliser to a farm and (ii) spread it on agricultural land, (b) that is the only purpose for which the tractor is being used, and (c) the purpose of that use relates to agriculture and nothing else. It does not matter who the contracting parties are or what is being paid to whom for what. In England the applicants were waste disposal specialists; that perhaps influenced the conclusion that the primary purpose was held to be waste disposal. However one analyses Bryan, the facts are distinguishable and it provides little assistance in determining the present appeal".

The Evidence

We heard evidence upon oath from Mr Dickenson and the Appellant. Mr Dickenson submitted a report from A Qadeer Khan OBE MSc, FCIWM, C Env., an environmental consultant, on the meaning of waste. The Respondents did not object to the admission of the report but questioned its relevance. The witness statement of Frances Manley for the Respondents was admitted into evidence. The Respondents supplied a bundle of documents.

The Facts

We found the following facts:

(1) The Appellant carried on business as a farmer tending Hedley Park and Horse Gate farms.

(2) On 9 November 2005 officers from HM Revenue and Customs detected red diesel in the running tanks of one of the Appellant's tractors YX04 MKV. The officers seized the tractor because they considered it was operating outside the scope of its licence and was not legally entitled to use red diesel.

(3) The Appellant used his tractor to load up yeast waste and beer bottoms slurry into a trailer from a large storage facility at the Scottish Courage brewery in Dunston which was then transported to his farm at Hedley Park where it was sprayed on his land in one operation.

(4) The Appellant was paid £60 a load by Northern Disposal Services Limited to collect and transport the slurry. The Appellant had no written contract with Northern Disposal Services Limited. He had been working for the company since April 2003 after being asked by Mr Dickenson to carry out the job. Northern Disposal Services Limited told the Appellant which farm to dispose the slurry on.

(5) The Appellant had first used a Fastrac tractor which was then replaced by a McCormick tractor to transport the slurry. The tractors were also used for agricultural work, such as ploughing. The Appellant owned five other tractors which were not used to transport the slurry from the brewery.

(6) The Appellant used to spray the slurry on a neighbouring farm but since October 2005 had restricted the spraying to his farm at Hedley Park.

(7) The Appellant used to draw out the slurry once a week but recently he had been carrying out the operation daily owing to a failure with the brewery plant.

(8) The Appellant used red diesel in his tractor to transport the slurry on public roads to the farms. Mr Dickenson advised the Appellant to use red diesel.

(9) Mr Dickenson on behalf of the Appellant advised the Respondents that the Appellant had transported 1,139 loads from the brewery to Coalburns Farm which was a round trip of 14 miles from April 2003 to October 2005. From October 2005 to April 2006 the Appellant transported 337 loads to Hedley Park Farm, a round trip of 20 miles. The estimated fuel consumption was 4.6 miles per gallon. The Respondents amended assessment issued 16 June 2006 was calculated from the information supplied by Dickenson.

(10) Northern Disposal Services Limited was an established waste disposal contractor. In 2000 ninety per cent of its business was concerned with the operation of large specialist vacuum tankers with the remaining ten per cent involving the land spreading of materials proven to be of agricultural benefit.

(11) Northern Disposal Services Limited had been responsible for removing effluent from the brewery from a date prior to 2003. Originally the company used articulated lorries to remove the effluent but from a date prior to 2003 engaged a local farmer to carry out the operation.

(12) Northern Disposal Services Limited originally had a contract with Federation Breweries to remove the effluent. The contract consisted of a written quotation which required Northern Disposal Services Limited to remove the effluent and recycle it to agricultural land. Under the terms of the quotation prices for the removal were reviewed at 12 month intervals. Northern Disposal Services was required to tender for the contract when the Scottish Courage took over the brewery in 2005. The contract secured was for two years from October 2005 to October 2007 and for a fixed price. According to Mr Dickenson Northern Disposal Services Limited received £90 per load from Scottish Courage.

(13) Mr Bryant of Scottish Courage advised the Respondents that Scottish Courage had a contract with Northern Disposal Services Limited to manage the waste at the brewery. As far as Mr Bryant was concerned the product collected by the Appellant was waste product. Scottish Courage did not specify the times when the waste had to be collected but the storage tanks had to be emptied on a regular basis otherwise the production at the brewery would cease. It was, therefore, necessary for the Appellant to attend the brewery regularly to ensure the brewery maintained production.

(14) Northern Disposal Services Limited held an exemption certificate issued by the Environment Agency which enabled it to spread the effluent on defined agricultural land without a waste management licence. The certificate was granted for 12 months on payment of a fee of £546 per every 50 hectacres of land and the submission of a waste management plan for Hedley Park Farm which was put together by Soil Environment Services Limited. The plan concluded that the brewery effluent would supply up to 70 per cent of the nitrogen, potassium and phosphorous fertiliser requirements for the Hedley Park Farm which was a grass only enterprise. If the plan recommendations about the spreading of the effluent on the farm were followed, it would not result in excessive loading of metals on the land and would provide agricultural benefit in supplying major plant nutrients.

(15) The effluent consisted of two elements, yeast waste and beer bottoms. The latter comprised fine silica powder, floaters and beer debris. The two constituents were kept in separate storage tanks by the brewery.

(16) In 2000 Northern Disposal Services Limited had a contract to remove waste from Mendip Dairy Crest at Aspatria, Cumbria which was spread on agricultural land. The company's employee removed the waste using a vehicle fuelled by white diesel. The Dairy refused to pay the white diesel costs and placed the contract with a local farmer on whose land Northern Disposal Services Limited had spread the waste. According to Mr Dickinson the farmer was allowed to use red diesel to remove the dairy waste.

(17) On 6 November 2000 Mr Dickinson wrote a letter to HM Customs and Excise asking for confirmation that the farmer was able to act as a waste contractor and run his vehicle on red diesel. On 28 November 2000 Mr Wyatt of HM Customs and Excise responded enclosing a Notice about the type of vehicles which can lawfully use red diesel. Mr Wyatt stated that it was the type of vehicle rather than what it was used for which determined the categories of DVLA licensed vehicle that could legally use red diesel.

(18) On 30 November 2000 Mr Dickinson wrote a letter to a Mr Snowball of HM Customs and Excise complaining that the Respondents had changed the rules which set up an uneven playing field between a farmer and a waste disposal contractor. Mr Dickinson formed the view that the Respondents were interpreting the term "agriculture" in the context of the ownership of the vehicle and land rather than the activity of the vehicle. He considered the interpretation unreasonable and irrational. Mr Snowball did not respond in writing to Mr Dickinson's letter.

Our Reasons

Had the Respondents "moved the goalposts"?

Mr Dickinson considered that the arrangements set up to remove the effluent from the Scottish Courage brewery were identical to those in Aspatria where the local farmer transported the waste from the Dairy to spread on his land, using a tractor fuelled by red diesel. Mr Dickinson believed that the Respondents had approved the Aspatria arrangements, and were now acting inconsistently by requiring the Appellant to use white diesel when moving the brewery effluent. Mr Dickinson confirmed that Mr Snowball of HM Customs and Excise had not responded to his letter of 30 November 2000 but insisted that Mr Snowball had agreed with his interpretation of the Aspatria arrangements when they spoke on the telephone during the week prior to 30 November 2000.

The Respondents submitted that Mr Dickinson's correspondence with them in November 2000 had no bearing upon this Appeal. The Appellant supplied no evidence of the circumstances in which the farmer in Aspatria was allowed to use red diesel for the spreading of effluent. Further Mr Snowball did not confirm in writing Mr Dickinson's interpretation of the Aspatria arrangements.

We are required to consider the merits of this Appeal on its own individual facts. The facts of the Aspatria arrangements are not relevant to this Appeal. Further there was no evidence that the Respondents had misdirected Northern Disposal Services Limited about the law regarding the lawful use of red diesel in road vehicles. Mr Wyatt's response of 28 November 2000 contained a copy of the relevant Notice setting out the Respondents' policy on the use of red diesel in vehicles. Mr Snowball did not confirm in writing Mr Dickinson's understanding of the Aspatria arrangements. In any event our Appeal jurisdiction does not extend to determining whether the Respondents have misdirected Northern Disposal Services Limited. This is a matter which falls within the care and management powers of the Respondents resolved by their complaint procedures rather than by the Tribunal. We, therefore, attach no weight to the circumstances surrounding the Aspatria arrangements.

Did the brewery effluent constitute waste material?

Mr Dickinson produced advice from Mr Khan OBE, an environmental consultant. Mr Khan considered that the use of any material on agricultural land which provided the same level of protection to the land as defined by the European Community Waste Framework Directive was not waste . It was a by-product. Mr Khan referred to the ECJ decision in Commission of the European Communities v Kingdom of Spain C-416/02 and UK Controlled Waste Regulations 1992 (SI 1992 588). Relying on Mr Khan's advice Mr Dickinson submitted that the brewery effluent was a by product rather than waste. Thus the Appellant was not involved in a waste disposal activity.

The Respondents contended that Mr Dickinson's reliance on Mr Khan's advice and ECJ judgments on the definition of "waste" was misplaced. The disputed issue in this Appeal was not whether the material being carried by the Appellant was "waste" for the purposes of EC Directives on Waste Management.

In this Appeal we are determining whether the facts meet the legal requirement of paragraph 2 schedule 1 of the 1979 Act, namely whether the Appellant's tractor was being used on a public road, solely for purposes relating to agriculture. The legal definition of "waste" under the EC Directives of Waste Management is not determinative of whether the Appellant meets the requirement, solely for purposes relating to agriculture. Thus our finding of whether the Appellant was using the tractor for purposes other than agriculture which may include waste disposal is one of fact rather than law. It is consistent with the statutory interpretation of the 1979 Act to hold that the Appellant was using the tractor for purposes of waste management even if the "waste" transported did not conform strictly with the legal definition of waste as applied in the EC Directives. In short we agree with the Respondents' contention that the Appellant's reliance on the EC definition of waste was misplaced.

Did the Appellant use his tractor when transporting the effluent solely for purposes relating to agriculture?

Mr Dickinson submitted that the Appellant was collecting the brewery effluent for use on his own farm. Further the collection, transport, and spreading of the effluent was a continuous single operation which did not involve an intervening delivery to a tank before the effluent was spread on the agricultural land. The Appellant was a farmer, not an employee of Northern Disposal Services Limited. Mr Khan's analysis gave additional support to Mr Dickinson's contention that the Appellant was using his tractor solely for purposes of agriculture, and entitled to use red diesel for transporting the effluent from the brewery to the farm. The waste management aspect was a separate activity which was the responsibility of Northern Disposal Services Limited not the Appellant.

The Respondents contended that the Appellant was fulfilling his contract with Northern Disposal Services Limited to remove the effluent from the brewery. The effluent was regarded as waste by Scottish Courage Breweries which paid Northern Disposal Services Limited to manage that waste. The facts of this Appeal were indistinguishable from England Environmental Limited. The Appellant was plainly involved in waste disposal. The fact that the effluent was spread on agricultural land and may have an agricultural benefit did not make the activity solely agricultural. In the Respondents' view it was not possible to separate out the agricultural purpose from the waste disposal purpose. The Respondents did not agree with the Renfrewshire Tribunal's analysis of Bryan & Andrew Thomas decision. They considered that the Renfrewshire Tribunal fell into the trap identified by Lord Macpherson of Cluny in England Environmental Limited of making the statutory test of solely for purposes relating to agriculture too elastic.

The Appellant accepted that he was using a tractor on a public road to transport brewery effluent to a farm. Thus the sole issue for determination was whether he was using the tractor solely for purposes relating to agriculture.

We find that the brewery regarded the effluent as waste. The brewery paid Northern Disposal Services Limited to manage that waste. Northern Disposal Services Limited, in turn, contracted with the Appellant for a fee to dispose of that waste on agricultural land. When transporting the brewery waste the Appellant was using his tractor to fulfil his contract with a waste disposal company, not in his capacity as farmer of Hedley Park Farm. Northern Disposal Services Limited held an exemption certificate permitting it to deposit the brewery waste on the Appellant's land without a waste management licence. The Environmental Agency granted the exemption certificate for 12 months under paragraph 7A of schedule 3 of the Waste Management Licensing Regulation 1994. The Agency will only grant the certificate if it is satisfied that the waste will be of benefit to and not harm the land. The Appellant's collection of the waste was determined by the need of Scottish Courage to maintain production at the brewery which required the Appellant to empty the waste tanks at regular intervals. During the period of the assessment the Appellant spread the waste on Hedley Park farm and on another farm in accordance with the waste management plans for the farms. Mr Dickinson specified the farm on which the Appellant deposited the brewery waste.

We are satisfied from the facts found that the principal purpose for which the Appellant used his tractor was to collect, transport and dispose of brewery waste in accordance with his contract with Northern Disposal Services Limited under which he received a fee for each load. The fact that the brewery waste had an agricultural benefit enabled Northern Disposal Services Limited to obtain a schedule 7A exemption certificate which reduced the costs of the waste disposal. Thus in the factual context of this Appeal the agricultural benefit of the brewery waste was of great significance to the waste management function performed by Northern Disposal Services Limited. Any agricultural purpose achieved by the deposit of the waste on farm land was incidental and subservient to the overall purpose of managing the brewery waste efficiently and effectively. Although in paragraph 23 we decided that the EC definition of waste was not determinative of the disputed issue in this Appeal, we consider it significant that Northern Disposal Services Limited managed the brewery waste in accordance with the waste control legislative framework set up by the European Community.

The Tribunal in the Renfrewshire case was critical of the approach adopted in the Bryan & Andrew decision in that the Bryan Tribunal did not apply the correct statutory test. Further the Tribunal's reliance on the necessity to remove the waste and the payment to the farmers to persuade them to take the slurry was misplaced. According to the Renfrewshire Tribunal it did not matter who the contracting parties were or what was being paid to whom for what. What mattered was the purpose for which the tractor was being used on a public road which according to the Tribunal was to take fertiliser to a farm and spread it on agricultural land. We agree with the statutory test as identified by the Tribunal in Renfrewshire, and with its decision on the actual case considered by it, the facts of which were very different from this Appeal and those in Bryan. However, we consider its factual analysis of the Bryan decision superficial and flawed. The word purpose as used in the statutory test is about the reasons for which something is done. In this Appeal the reason why the Appellant attended the brewery with his tractor was to fulfill his contract with Northern Disposal Services Limited to remove the waste from the brewery and take it to nearby farms. He was attending the brewery in his capacity as a sub-contractor to a waste disposal company not as a local farmer. He used his tractor on a public road to remove the brewery waste and deposit it on agricultural land in accordance with the waste management plan as agreed under the terms of the schedule 7A exemption certificate granted to Northern Disposal Services Limited.

Decision

We are satisfied that the Appellant used his tractor on a public road for purposes related to waste disposal. Although the deposit of the brewery waste on the land served an agricultural purpose it was incidental and subservient to the waste disposal. We hold that the Appellant did not meet the statutory test of using his tractor solely for purposes related to agriculture. In those circumstances he was not entitled to use red diesel in his tractor for the journeys transporting the waste from the brewery to the nearby farms. Thus the Appellant was liable to repay the rebate of duty on red diesel for the period of unauthorised use. The Respondents' assessment of £9,995 for the period 1 July 2003 to 31 March 2006 was calculated from figures provided by the Appellant. He did not challenge the quantum of the assessment during the Appeal.

We dismiss the Appeal against the assessment. We allow the Appeal against the penalty of £250 which was conceded by the Respondents. As the Appellant was unsuccessful with his substantive Appeal, we make no order for costs.

MICHAEL TILDESLEY OBE

CHAIRMAN

RELEASE DATE: 20 September 2007

MAN/06/8042