Hazardous waste – Pollutants – Appellant proposing to extract existing landfill waste and contain it – Appellant seeking exemption from landfill tax – Whether all relevant activities ceasing – Whether appellant entitled to exemption certificate – Appeal dismissed
The appellant specialist waste contractor owned the appeal site, which formed an identifiable part of the Thornhaugh Quarry, Wansford, near Peterborough. Landfill had started at the site in 1984, with commercial and industrial waste, together with domestic waste, being deposited and producing leachate. The landfill was carried out in accordance with the then industry standard practice of “disperse and attenuate”, which allowed contaminants such as leachate to seep into the underlying and surrounding area. Subsequently, landfill practice developed on the principle of containment in lined and capped voids so as to prevent or reduce the incidence of seepage.
Landfill tax was chargeable under the Finance Act 1996 on a disposal of material as waste by way of landfill on or after 1 October 1966 (section 40). The tax was payable by the landfill site operator (section 41) at a rate of £32 per tonne unless it was inactive or inert and listed for the purposes of section 42, in which case the tax was chargeable at the rate of £2.50 per tonne. Sections 43A and 43B contained provisions for various exemptions, added by the Landfill Tax (Contaminated Land) Order 1996 (SI 1996/1529). They exempted disposals of material from contaminated land subject, inter alia, to the material being removed from the land for which a certificate under section 43B remained in force.
In December 2004, the appellant applied to the respondent Commissioners for a landfill tax exemption certificate under section 43B. The VAT and Duties Tribunal upheld the refusal of a certificate on the basis that the site remained an incomplete and unrestored landfill site.
It was common ground that: (i) the deposit of waste as landfill at the site resulted in the presence of pollutants in, on or under the site; (ii) the landfill activity stopped in 1993; and (iii) no further deposits were made. The appellant proposed, as part of a reclamation plan, to: (i) extract 920,000 tonnes of contaminated landfill waste; and (ii) construct a modern containment feature on the site and to deposit hazardous waste material. Once filled, the site would be returned to agricultural use. The issue was whether, as required by section 43B(8)(c), “all relevant activities have ceased” in respect of the site. An activity was relevant if it resulted in the presence of pollutants in, on or under the land in question.
Held: The appeal was dismissed.
Whether the appellant was entitled to a certificate under section 43B was a question of construction of the section against the background of the general purposes of landfill tax, its exemptions and its application to the facts of the case: Parkwood Landfill Ltd v Commissioners of Customs & Excise [2002] EWCA Civ 1707; [2003] 1 WLR 697 considered.
There was a clear contrast between sections 43A(3)(c), 43B(7) and 43B(8)(a), which defined and qualified reclamation, and section 43B(8)(c) and 43(10)(a), which was directed to whether the relevant activity had ceased. The former were, to a large exten,t built around the potential harm that pollutants could cause, and the removal of that harm, whereas the latter were directed only at the presence of pollutants in, on or under the land. A pollutant was a substance capable of causing pollution. The fact that the manner in which such substances were deposited at the site would, or was anticipated to, remove the risk that they would cause pollution did not mean that, as substances, they were not pollutants.
The 1996 Act was not concerned with the means by which polluting activities were controlled and regulated. It followed that “pollutant” should carry its ordinary meaning. As a matter of ordinary English, pollution was the act of polluting or, depending upon its context, the product of polluting activity, while a pollutant was “a polluting agent or medium” (Oxford English Dictionary) or a substance capable of causing pollution.
Although the reclamation required by section 43B(7)(b) had to reduce or remove the potential of pollutants to cause harm, section 43B(8)(c) required that the activity should not result in the “presence of pollutants” in, on or under the land. Since the appellant’s proposed landfill activity would result in the presence in the land of substances capable of causing pollution, the relevant activity had not ceased and section 43B(8)(c) was not satisfied.
Maurice Sheridan (instructed by Walker Morris, of Leeds) appeared for the appellant; James Puzey (instructed by the legal department of HM Revenue & Customs, of Manchester) appeared for the respondents.
Eileen O’Grady, barrister
