What is waste? Does waste have to be useless? What does ‘discard’ mean? Those questions have crucial environmental and tax implications but have long exercised legal brains. The Court of Appeal has, however, provided some authoritative answers in an important test case for the landfill industry.
The case concerned a material known as ‘fluff’ which is contained in black sacks and is used to form a thick layer on the top, bottom and sides of landfill sites. It protects the impermeable membranes that surround such sites, which in turn prevent environmentally harmful leachate from contaminating surrounding soil.
Bags of fluff perform a buffering role and are carefully inspected before installation to ensure that they contain no large or sharp objects that might pierce the membranes. Their presence enables use of heavy machinery to compact waste into landfill sites without endangering the integrity of the membranes.
Four landfill site operators argued that, as use is made of fluff, it could not be viewed as having been discarded as waste. It was said to fall outside the scope of Landfill Tax, which is charged on every tonne of taxable waste disposed of at landfill sites. The operators’ arguments failed to convince the First-tier Tribunal (FTT) but later succeeded before the Upper Tribunal.
In upholding a challenge to that outcome brought by HM Revenue and Customs, the Court noted that the important question was not whether use was made of the fluff but whether the operators intended to discard it. The FTT was right to find that such use as the operators made of the fluff was insufficient to negate their otherwise obvious intention to throw it away.
The Court acknowledged that, normally, to use something is inconsistent with discarding it at the same time. However, the FTT’s finding that the operators were discarding the fluff was consistent with the usual meaning attached to what is an ordinary English word. Citing the example of a householder wrapping broken glass in bubble wrap before putting it in the bin, the Court observed that there is nothing necessarily inconsistent in throwing something away whilst simultaneously using it.
The FTT’s decision that fluff falls into the category of taxable waste was restored. The Court reached an identical conclusion in respect of a shredded material, known as EVP, which is used by landfill site operators for the same purpose as fluff.