Two waste management companies, Devon Waste Management Ltd and Biffa Waste Services Ltd, appealed against First-tier Tribunal decisions upholding HMRC's assessments of certain waste material to landfill tax.
Legislative changes were made to the landfill tax regime from September 2009, meaning certain activities that were not previously caught were treated as taxable disposals under the Finance Act 1996.
The issue was whether certain waste, which performed a function, was subject to landfill tax. In the first appeal, the material was 'fluff' – waste used as a buffer against leaks. In the second, the material was 'EVP', a layer of non-compacted waste laid on top of landfill. The appellants argued that, under previous case law, the use of materials for regulatory compliance purposes was inconsistent with intention to discard, meaning it was not taxable under the 1996 Act. The tribunal held that its use did not negate an intention to discard it, so it fell within the Act.
At this appeal it was considered that HMRC had argued that previous case law was decided on the basis of the Act. The Act provided that material deposited on the land, with a view to it later being covered with earth, was treated as being disposed of at time of deposit, not at time of covering. That provision was concerned with the time at which a landfill disposal took place and had nothing to do with the question with which the previous case law was concerned: whether the material was disposed of “as waste“.
The relevant question was whether, at time of disposing of the material, the operator intended to discard it. Previous case law decided that if a site operator disposed of material, but intended to and did make use of it for his own purposes, including regulatory compliance, then they did not make the disposal with the intention of discarding the material. The appeal was allowed.
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