Landfill operators refused permission to appeal by Supreme Court – Melanie Hall QC successfully leads for HMRC in long-running test-case

20 May 2022

Melanie Hall QC led Brendan McGurk and David Gregory for HMRC, in Biffa and others v HMRC, a test-case for the UK landfill sector concerning whether landfill tax was payable on ‘fluff’ layers within landfill sites.

The challenge is one of the biggest tax repayment claims of the last 5 years concerning an issue on which Melanie Hall has been advising HMRC for almost nine years.

Biffa and other landfill site operators claimed that the waste in the so-called “fluff layer” – present at the top, sides and bottom of all UK landfill cells – was not disposed of as waste but “used” in the engineering of the cells. The claimed consequence was that landfill tax was not payable on that waste. Over £3 billion of tax was at stake.

On 22 April 2021, the Court of Appeal upheld HMRC’s appeal on all grounds of appeal against the Upper Tribunal’s decision. In so doing, the Court of Appeal clarified the law on “use” for the whole sector. By its decision judgment the Supreme Court refused the application for the permission to appeal on the basis that the application had failed to show any arguable point of law. The Court of Appeal’s judgment is therefore the last word on this issue, providing greater clarity on the meaning of its judgment in WRG.

The Monckton team was instructed throughout this long-running case by Richard Shaw, Senior Lawyer in the Customs, Excise and Environmental Taxes Litigation Team.