“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 subsections (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.” (a) at the request of another person; (b) in pursuance of a contract with another person.”
“70. Interpretation: other provisions. (1) Unless the context otherwise requires— “material” means material of all kinds, including objects, substances and products of all kinds; “taxable disposal” has the meaning given by section 40 above. (2) A landfill disposal is a disposal— (a) of material as waste, and (b) made by way of landfill.” “material” means material of all kinds, including objects, substances and products of all kinds; “taxable disposal” has the meaning given by section 40 above. (a) of material as waste, and (b) made by way of landfill.”
“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 s.65 is for the purpose of interpreting one of the conditions necessary for chargeability under s.40(1), namely s.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 s.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.”
“Since it appears that the Tribunal found that the deposit (and possibly the transport) were made on behalf of Darfish, it is argued that its intention was the only intention which the Tribunal was required to consider. I disagree. I have construed ‘disposal’ as the antonym of retention. The focus of the provisions is upon the person getting rid of something, not upon the person retaining or acquiring something. DNS was not making a disposal, on my construction, on behalf of Darfish. It was assisting in the acquisition and retention of the material on behalf of Darfish. But it was making a disposal on behalf of [the developers], and it is their intention which should have been determined by the Tribunal.”
“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. Section 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.”
“The purpose of the legislation was to tax waste material deposited at landfill sites and not to tax deposits at landfill sites of useful material produced from waste material.”
“3. WRG's group operates about 60 landfill sites across the UK, most accepting both inert and active waste. All the sites are licensed, and must be operated in accordance with the strict conditions of the licences. One condition which, I understood, applies in every case is that the operator must keep sufficient stocks of inert material or suitable substitutes for use as daily cover, that is to lay over the waste material which has been deposited during the course of a day's operation in order to contain it, so that it does not blow away in the wind, give off odours or otherwise create a nuisance. Items such as sheeting may be used but the preference, mainly because it is usually the least expensive method, is to use inert material such as soil or builders' rubble which is not suitable for re-use as aggregate. Inert material is also used for site engineering purposes, particularly the construction of roads within the site which lorries may use in order to reach the point at which their loads are to be discharged. 4. In addition to landfill sites, WRG operates about 25 transfer stations and 60 civic amenity sites, none of which is a landfill site. They are, instead, facilities at which waste is accepted before it is sorted and either sent for recycling (WRG has some recycling facilities of its own which are not relevant to this appeal) or to one of WRG's landfill sites. The transfer stations accept waste from local authorities and businesses, in exchange for a charge. The amenity sites are run pursuant to agreements between WRG and the relevant local authority, which pays WRG for its services. Amenity sites accept waste from members of the public, who are not themselves required to make any payment. 5. WRG's terms of trade, and in respect of civic amenity sites its agreements with the local authorities, provide that, whether WRG is making a charge for accepting the waste, making a payment for material it needs which is in short supply, or taking the waste without payment on either side, title in the waste materials passes to WRG on acceptance of the waste on site. Although the precise terms differ from one site to another, their effect is the same. Thus once material has been brought to a site, whether it is a landfill site, a transfer station or an amenity site, WRG may deal with that waste as it wishes, though it may be constrained to some extent by the terms of its site operating licence and any agreement with the relevant local authority into which it may have entered. 17. ....... 8. It was common ground that the disposals with which I am concerned were made on or after1 October 1996 , by deposit "on the surface of land" at landfill sites of which WRG is or was the operator and that they were all of "qualifying material". The question is whether the disposals were "of material as waste", so as to come within sections 40(2)(a) and 42(2), as the Commissioners maintain, or they warrant a different description, as WRG contends, such that they do not attract liability for tax at all. Historically, WRG has accounted for landfill tax at the lower rate on all the inert material it receives at its sites. When the material was brought directly to the site by a customer, the tax due was calculated (by reference to the weight of material and its classification as qualifying material liable to the reduced rate, or other material attracting the full rate) and WRG accounted for the tax so calculated to the Commissioners. So much of the material deposited at transfer stations or amenity sites as could not be recycled or disposed of in some other way was removed to one of WRG's landfill sites, and, in the case of qualifying material, an internal charge of£2 per tonne was raised, representing the tax for which WRG was liable to, and did, account to the Commissioners. I understand a similar arrangement was made in respect of non-qualifying material, but I am not concerned about that material in this appeal.” ....... 12. I accept--and it was not disputed--that the operation of landfill sites is closely and strictly regulated for environmental protection reasons, and the regulations under which operators such as WRG must carry on their business are onerous. The requirement of particular relevance in this appeal is that I have mentioned, that at the end of each day, the newly deposited waste must be covered by barrier, usually consisting of a layer of inert material. I was also told, and accept, that WRG endeavours to take no more inert waste than it needs for the purposes described at categories (j) and (k) above, since it is able to charge significantly greater sums to those depositing active waste (which also, unlike inert material, gives off gases which WRG may capture and sell since they can be used in the generation of electricity). If more inert waste than it needs is offered, it charges a high price as a discouragement. Otherwise, the price WRG charges or pays for deposits of inert materials is dictated by market conditions. When it is plentiful, a full economic charge can be levied; when there is a shortage, but WRG needs a supply in order to comply with its daily cover obligations, it must offer advantageous terms, such as those in categories (a) to (d) above, and on occasion must actively seek a supply (category (h)). For similar reasons what WRG charges or pays for inert waste may differ from one site to another. By contrast, the price charged for the acceptance of active waste is largely pre-determined, though there may be some negotiation with particularly large customers. In the case of inert material, WRG is in competition not only with other landfill operators but also with golf clubs, farmers, landscapers and others who have a need for such material and are not liable to account for tax.”
“It is necessary to consider the process of disposal, and not merely the moment when the material is deposited on the landfill site, and to do so from the perspective of the person relinquishing the material, and not from that of the person acquiring it, here the operator of the landfill site.”
“The only permissible consideration is the supplier's desire to divest himself of the (as he perceives it) waste material. If he does dispose of it, and it goes to landfill at a landfill site on or after1 October 1996 , all the conditions of section 40(2) are satisfied, and the tax is due. It does not seem to me to make any difference whether the supplier receives or makes a payment, or whether the recipient pays for the transport. The economic consequences of the disposal are, in my view, irrelevant to the incidence of the tax (and are not touched upon, at all, in the legislation).”
“As Moses J pointed out in Darfish, title will almost always have been transferred, so that the landfill site operator would be the relevant disposer at the site in almost every case. That does not seem to be what the legislation has in mind: there is no reference to the passing of title anywhere, and the provisions clearly distinguish between "the person making the disposal" and "the landfill site operator" thus clearly allowing for situations where they are not one and the same person. Further, I see no reason why making a disposal at someone's request or pursuant to a contract with someone should be treated as limited to cases where legal title was not passed as part of the process of disposing of the material "on behalf of" that other person. This is not to say that the passing of property, and the circumstances in, and stage at, which ownership passes may not have some bearing on the question whether the disposer at the site is acting on behalf of another person. To the extent that the Tribunal in the present appeal were saying that such matters are always irrelevant in this context I would respectfully disagree. The point is simply that the fact that property has passed cannot in my view be conclusive in the way that [Counsel for WRG]’s first argument assumes.”