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We are taking this opportunity to write to developers and site managers in England & Wales to remind of changes in the way landfill tax is to be applied and environmental permitting is enforced which could affect your business. These changes have come about following the identification of a number of abuses of both the environmental permitting system and the inappropriate and incorrect use of the CL:AIRE Definition of Waste: Development Industry Code of Practice (DoW CoP). 

The technical elements and basic compliance issues with respect to the inappropriate and incorrect use of the DoWCoP and environmental permitting are being addressed by CL:AIRE, HRMC and the Environment Agency & Natural Resources Wales (NRW). This includes close collaboration between these organisations to identify and pursue regulatory offences relating to the reuse of soils and/or wastes on development sites. 

Of particular note, we would draw your attention to the fact that Part III of the Finance Act 1996 which primarily encompasses landfill tax has been amended from 1 April 2018 so that the scope of landfill tax has been extended to cover any site (not exclusively landfills) operating without the appropriate environmental permit, appropriate exemption or, correctly applied use of the DoW CoP. Please visit -  https://www.gov.uk/government/publications/landfill-tax-disposals-not-made-at-landfill-sites/landfill-tax-disposals-not-made-at-landfill-sites

The consequences of breaches to any of the aforementioned can be summarised as follows:- 

  • Sites in England which operate without the necessary environmental permit or exemption and / or are incorrectly operating under the DoW CoP will be liable for landfill tax at the standard rate (currently £91.35 / tonne) on all material.
  • Similarly, sites in Wales will be liable for landfill disposal tax (as the tax is to be known in Wales from 1 April 2018) at an unauthorised disposal rate of £133.45 / tonne (150% of the rate in England). 
  • All material at illegal sites on and after 1 April 2018 in now subject to the tax. Currently, certain material deposited at permitted sites is exempt from landfill tax, but the changes will disapply the exemptions for illegal sites so that all material deposited at them is taxable. 
  • In addition to being liable for landfill tax, any person who deposits waste or knowingly permits the deposit of waste at an illegal site will now face a separate criminal prosecution for waste offences. 
  • HMRC will be able to charge an additional penalty of up to 100% of the tax due, and will also have the right to prosecute those who do not pay. 

We would also draw your attention to the fact that the landfill tax will be applied at the standard higher rate irrespective of whether the waste is ‘inert’ or not. 

The EA & NRW are aware of a number of abuses of environmental permitting and the DoW CoP by developers, unscrupulous waste operators, poorly informed consulting engineers, hauliers and contractors. Some of these are currently under investigation and disciplinary procedures are pending. 

This action could result in any company or individual involved in a project identified as failing to have the correct or properly administered environmental permit, exemption or DoW CoP MMP being deemed to have illegally deposited the waste. The details of all those involved in the project will be handed over to HMRC who will pursue the collection of the Landfill Tax in addition to any other enforcement action taken by the EA / NRW. Applicable parties could include client, consultants, contractors, hauliers and third party site operators all of whom may be jointly and severally liable for this tax and any other resultant penalties. 

We would strongly recommend that you review your procedures on how you assess and reuse or dispose of arisings on your various projects. This should include an immediate review of existing MMPs, environmental permits or exemptions to ensure you are using the correct mechanism and that they are being properly complied with. Simply employing an environmental consultant or commissioning an MMP and instructing a Qualified Person is not sufficient to absolve you of your liability on this matter as a review of current standards has identified numerous failings which may result in further action by the EA/NRW, HMRC and/or CL:AIRE. 

Further advice on this matter can be obtained from the CL:AIRE website www.claire.co.uk/cop

We would urge you to place the management and the reuse of materials on your sites under appropriate, professional and experienced consultants or contractors who have demonstrable experience and expertise on ensuring compliance.