Augean Plc v HM Revenue & Customs

Augean plc appeals against the decision dated 27 February 2008 of the VAT and Duties Tribunal (David Demack). The Tribunal dismissed Augean’s appeal against a decision on review by the Commissioners for HM Revenue and Customs (“HMRC”) upholding an earlier decision to refuse a certificate of exemption for landfill tax in respect of “the Site”, which is a separate and identifiable part of Thornhaugh Quarry, Wansford, near Peterborough.

Landfill tax is chargeable by virtue of Part III of the Finance Act 1996. It is chargeable on a disposal of material as waste made by way of landfill at a landfill site on or after 1 October 1966 (section 40). The tax is payable by the landfill site operator (section 41) at a current rate of £32 per tonne, unless it is inactive or inert and listed for the purposes of section 42 in which case the tax is chargeable at the rate of £2.50 per tonne.

Part III contains provisions for various exemptions from the tax, of which the provisions relevant to the present appeal are sections 43A and 43B, added by the Landfill Tax (Contaminated Land) Order 1996 (SI 1996/1529). Broadly stated, they exempt disposals of material from contaminated land subject to a number of conditions. One of the conditions is that the material has been removed from land in relation to which a certificate has been issued under section 43B and remains in force. It is the refusal by HMRC to issue a certificate under section 43B in relation to the Site which was the subject of the appeal to the Tribunal.

The issue is whether, as required by section 43B (8) (c) “all relevant activities have ceased” in relation to the Site. An activity is relevant if it has at any time resulted in the presence of pollutants in, on or under the land in question. It is common ground that the deposit of waste as landfill at the Site resulted in the presence of pollutants in, on or under the Site, that the landfill activity stopped in 1993 and that there has been no further landfill deposits at the Site since then. Augean now proposes, as part of a plan for the reclamation of the Site, to extract all the present contaminating landfill waste amounting to some 920,000 tonnes, to construct a modern containment feature on the Site and to deposit, as landfill, hazardous waste material. Once filled, the Site will be returned to agricultural use. In these circumstances, the issue is whether, in the light of Augean’s proposals, it can be said that all relevant activities have ceased at the Site for the purposes of section 43B.

It is necessary to set out section 43B.

“(1)

Subject to subsection (2) below, the Commissioners shall issue a certificate in relation to any land where–

(a)

an application in writing is made by a person carrying out, or intending to carry out, reclamation of that land (the applicant);

(b)

the applicant provides to them such information as they may direct, whether generally or as regards that particular case;

(c)

the application is made not less than 30 days before the date from which the certificate is to take effect; and

(d)

the reclamation qualifies under subsection (7) below.

(2)

The Commissioners shall not refuse an application for a certificate in a case where the conditions specified in subsection (1) (a) to (d) above are satisfied unless it appears to them–

(a)

necessary to do so for the protection of the revenue; or

(b)

except where the applicant is one of the bodies mentioned in subsection (5) of section 43A above, that all or part of the reclamation of land to which the application relates is required in order to comply with a notice or order mentioned in subsection (4) of that section.

(3)

The Commissioners may make a certificate subject to such conditions set out in the certificate as they think fit, including (but not restricted to) conditions–

(a)

that the certificate is to be in force only in relation to a particular quantity of material;

(b)

that the certificate is to be in force only in relation to disposals made at a particular landfill site or sites;

(c)

that the certificate is to be in force in relation to part only of the land to which the application relates.

(4)

A certificate issued under this section–

(a)

shall have effect from the date it is issued to the applicant or such later date as the Commissioners may specify in the certificate; and

(b)

shall cease to have effect on such date as the Commissioners may set out in the certificate, but in any event no later than the day on which the person to whom the certificate was issued ceases to have the intention to carry out any activity involving reclamation of the land in relation to which the certificate was issued.

(5)

Where a certificate has been issued to a person, the Commissioners–

(a)

may vary it by issuing a further certificate to that person; or

(b)

may withdraw it by giving notice in writing to that person; but this is subject to subsection (6) below.

(6)

The Commissioners shall not withdraw a certificate unless it appears to them–

(a)

necessary to do so for the protection of the revenue;

(b)

that the reclamation did not in fact qualify under subsection (7) below or no longer so qualifies;

(c)

that there will not by any or any more disposals within section 42A (2) above of material from the land to which the certificate relates; or

(d)

except where the person to whom the certificate was issued is one of the bodies mentioned in subsection (5) of section 43A above, that the removal of material from the land to which the certificate relates is required in order to comply with a notice or order mentioned in subsection (4) of that section.

(7)

A reclamation qualifies under this subsection if–

(a)

it is, or is to be, carried out with the object of facilitating development, conservation, the provision of a public park or other amenity, or the use of the land for agriculture or forestry; or

(b)

in a case other than one within paragraph (a) above, it is, or is to be, carried out with the object of reducing or removing the potential of pollutants to cause harm,

and, in either case, the conditions specified in subsection (8) below are satisfied.

(8)

The conditions mentioned in subsection (7) above are–

(a)

that the reclamation constitutes or includes clearing the land of pollutants which are causing harm or have the potential for causing harm;

(b)

that, in a case within subsection (7)(a) above, those pollutants would (unless cleared) prevent the object concerned being fulfilled; and

(c)

that all relevant activities have ceased or have ceased to give rise to any pollutants in relation to that land.

(9)

For the purposes of subsection (8) above the clearing of pollutants–

(a)

need not be such that all pollutants are removed;

(b)

need not be such that pollutants are removed from every part of the land in which they are present;

(c)

may involve their being cleared from one part of the land and disposed of on another part of the same land.

(10)

For the purposes of subsection (8)(c) above an activity is relevant if–

(a)

it has at any time resulted in the presence of pollutants in, on or under the land in question otherwise than–

(i)

without the consent of the person who was the occupier of the land at the time, or

(ii)

by allowing pollutants to be carried onto the land by air or water, and

(b)

at that time it was carried out–

(i)

by the applicant or a person connected with him, or

(ii)

by any person on the land in question.

(11)

For the purposes of subsection (10) above–

(a)

any question whether a person is connected with another shall be determined in accordance with section 839 of the Taxes Act 1988;

(b)

the occupier of land that is not in fact occupied is the person entitled to occupy it.

(12)

In this section "land" has the meaning given by section 43A(6) above.”

The relevant facts may be summarised as follows. Landfill started at the Site in 1984 and continued until 1993. A wide range of commercial and industrial waste, together with domestic waste, was deposited and these deposits produced leachate. The landfill was carried out in accordance with what was then the industry standard practice of “disperse and attenuate” allowing contaminants such as leachate to seep into the underlying and surrounding area. More recently, landfill practice has developed on the principle of containment in lined and capped voids so as to prevent or reduce the incidence of seepage.

In April 1997 a consolidated planning permission was granted for the quarry, including the Site, replacing a number of earlier mineral and landfill planning permissions. It provided for the continuing extraction of minerals and the restoration of the quarry to agriculture and nature conservation use by infilling. The permission expires on 31 December 2013 “at which time the operation authorised by this permission shall cease and the land reinstated to a condition suitable for the resumption of agricultural use to the satisfaction of the Mineral Planning Authority”.

The Tribunal found that “in or about 1993 the then owner of the quarry simply stopped the landfilling of waste at the Site. Its restoration profile had not achieved the contours for return to agriculture required by the then applicable planning permission being between two metres and eight metres below the consented restoration profile, and it has not been capped”. It would require a further infill of approximately 180,000 sq. m. of material to achieve the required profile. That has remained the position and there has been no further infilling since 1993.

The operation of landfill sites is subject to statutory control. Before 1990, licences were issued under the Control of Pollution Act 1974. Licences still in force on 31 May 1994 were converted into waste management licences by section 77 of the Environmental Protection Act 1990. This applied to the licence for the Site. The licence was subject to a number of modifications made over the years, the last being in March 2004. The licence permitted the deposit as landfill of non-hazardous waste.

Landfill sites must now be authorised by a Pollution Prevention Control permit (“PPC permit”) issued by the Environment Agency in order to accept waste. Under transitional arrangements, applications for PPC permits for a landfill site had to be made by a date notified to the operator by the Environment Agency. For a PPC permit to be granted any existing area then authorised to receive waste had to meet the requirements of the Landfill Regulations 2002 and in particular had to be compliant with the Groundwater Regulations 1998. The Groundwater Regulations contain schedules with two lists of harmful substances. Regulation 4 provides that “an authorisation shall not be granted if it would permit the direct discharge of any substance in List 1.” Under Regulation 5 an authorisation may be granted only if it includes conditions which require that all technical precautions are observed to prevent groundwater pollution by List II substances. Under the Landfill Regulations 2002, any existing areas of land then authorised to receive waste for disposal that do not meet the requirements of the Landfill Regulations (including the requirements of the Groundwater Regulations) must close and cease to accept waste. No application has been made for a PPC permit for the Site. Since the Tribunal hearing the Pollution Prevention and Control (England and Wales) Regulations 2000, under which PPC permits were issued, and the Landfill Regulations 2002, have been replaced by the Environmental Permitting (England and Wales) Regulations 2007 but nothing turns on this.

In December 2004 Augean, a specialist waste contractor, purchased the company which owned the quarry, including the Site. On 30 May 2005 it applied to HMRC for an exemption certificate under section 43B.

By a letter dated 25 May 2006 the Environment Agency informed Augean that the latest annual monitoring showed the Site continued to cause pollution of the local limestone aquifer by the seepage of leachate from the waste deposits. It said that to achieve the landfill contour required by the planning permission would require raising the level of the site but that would cause more pollution to escape into the aquifer. It requested Augean to consider how best “to remediate” the Site. The writer’s initial view was that only excavation of the waste combined with re-engineering of the resulting void could provide a remediation strategy which would prevent further pollution and enable compliance with the planning permission. This reflected the detailed proposals for the Site contained in Augean’s application to HMRC. The re-engineered void would be filled with about 1 million tonnes of waste, including hazardous waste, but the anticipated effect of lining and capping the void would be to prevent the seepage of pollutants into surrounding areas and in particular into the aquifer.

On 28 February 2007 the Environment Agency served a closure notice in relation to the Site, as a result of the absence of an application for a PPC permit as regards the Site. The notice required Augean to cease accepting and not to recommence the acceptance of waste for landfill at the Site and it initiated the process for a “definitive closure” of the Site as a landfill site. On 21 May 2007 Augean applied to the Environment Agency to defer submission of a closure plan pending resolution of the landfill tax issue and the grant of a new planning permission.

On the basis of Augean’s evidence, the Tribunal summarised Augean’s proposals for the Site in para 36 of its Decision:

“36.

Subject to the success of the present appeal, Augean intends to include in its planning application a proposal to remove the contaminating materials in the Site. It has not yet identified a site to receive the materials intended to be so removed. Subject to the granting of planning permission and a PPC permit, Augean intends to remove the contaminating material in the Site while contemporaneously filling Phase 4 and excavating Phase 7. After the material is removed and Phase 4 filled, Augean further intends fully to engineer the Site to develop a modern containment landfill for the disposal of wastes from the construction industry that are difficult to manage. Such wastes compromise asbestos, gypsum and contaminated soils together with a complementary limited quantity of non-hazardous waste.”

The replacement waste material was described in the evidence as “hazardous material with a low leaching potential”.

It is common ground that the Site is “the land” for the purposes of section 43B and that Augean is intending to carry out a reclamation of the Site which satisfies para (b) of section 43B(7) and para (a) of section 43B(8). It is common ground that the landfill activity carried on from 1984 to 1993 resulted in the presence of pollutants in, on or under the Site and that the future landfill proposed by Augean once it has removed the existing material will involve the deposit as landfill of hazardous waste. The issue between the parties is whether in the circumstances of the case “all relevant activities have ceased … in relation to “the Site”.

After setting out or summarising in detail the relevant facts and legislative provisions and the submissions of the parties, the Tribunal considered the terms of the closure notice, noting in particular that by its terms the Site is not as yet “definitively closed”. The Tribunal continued in paras 73-75:

“73.

It appears to me naturally to follow that the “relevant activity” for the purposes of section 43B(8)(c) is not “the former and concluded landfilling of waste at the Site” as submitted by Mr Sheridan, but rather the continuing one of the disposal of waste by landfill.

74.

I do, however, accept his claim that no further waste is permitted to be deposited at the Site since one of the specified steps in the closure notice is that from the date thereof, 28 February 2007, Augean “cease accepting and do not recommence the acceptance of waste for disposal at the landfill”. That does not affect my definition of “relevant activity” for ceasing to accept waste may be a temporary phenomenon since by regulation 16(3) of the Landfill Regulations the Environment Agency may withdraw the closure notice at any time.

75.

I am also unable to accept Mr Sheridan’s submission that the “relevant activity” has ceased. If I were to do so, it would mean that any landfill site operator could simply close down its operation and thereafter, at a time of his own choosing, claim that there was no landfilling being conducted on its site. As I have already explained, under the planning permission, Augean is required to carry out certain work on the Site with a view its being restored to defined contours and to agricultural use, and under the WML is required to prevent leachate migration and also to take remedial steps to prevent further leachate escapes until prevention can be achieved. In other words, there is a present and continuing liability on Augean to deal with the leachate problems under the WML.”

Those paragraphs set out the first ground for the Tribunal’s decision, which is essentially that the combined effect of the licences and permissions is to impose on Augean continuing responsibilities as regards the existing landfill at the Site and therefore the relevant activity, that is an activity (landfill) which has resulted in the presence of pollutants at the Site, is continuing. This ground turns on the words “all relevant activities have ceased … in relation to” the Site.

Paragraph 76 of the Decision sets out a related but second ground, which turns on the words “all relevant activities … have ceased to give rise to any pollutants in relation to that land”:

“76.

Section 43B(8)(c) of the 1996 Act requires all “relevant activities” to “have ceased or have ceased to give rise to any pollutants in relation to that land”. It is now, although it was not earlier, common ground that “that land” is the Site. As I have decided, “relevant activities” in the present case means the landfilling of wastes at the Site. In doing so, I have taken careful account of section 43B(10) and am quite satisfied that the deposit of waste at the Site has resulted in the presence of pollutants in or under the Site. I earlier found that deposits of waste at the Site ceased on service of the closure notice so that the only remaining question is whether the deposits of waste at the Site have ceased to give rise to any pollutants in relation to it. It is patently obvious from the evidence, and I find, that the deposits made continue to give rise to pollutants in relation to the Site.”

HMRC do not seek to support the Tribunal’s decision on this second ground, which was not part of their submissions. They accept that section 43B(8)(c) is directed at the “relevant activities” and whether they have either ceased or, if not ceased altogether, ceased to give rise to any pollutants. The paragraph is not directed at whether past activity continues to give rise to pollutants. If it were, it would mean that a certificate could never be issued and the section would be pointless.

Although HMRC support the conclusion reached in the Tribunal’s first ground, that all relevant activities have not ceased, they do so for different reasons. They submit that the disposal of waste by landfill is the activity which has resulted in the presence of pollutants in or under the Site. Although the last deposit of landfill was made in 1993, the Site remains an incomplete and unrestored landfill site. Augean’s proposal is to refill the voids to be created by the excavation of the waste at the Site by the deposit as landfill of hazardous waste. In these circumstances it cannot be said that the relevant activity has ceased. Rather, Augean will resume the relevant activity. In considering whether an activity has ceased, there must be consideration of the future as well as the present and the past. If not, an applicant for a certificate could rely on a temporary stop to say that he has ceased the relevant activity.

On behalf of Augean, Mr Sheridan draws attention to the underlying purpose of landfill tax and to its exemptions. Rather than being simply a revenue-raising measure, it aims to further two important environmental purposes. First, by imposing tax on landfill deposits, it discourages landfill. Secondly, by providing the exemption in sections 43A and 43B, it encourages the reclamation of land by the removal of pollutants which are causing or may cause harm. He submits that the relevant provisions must be considered against the background of these purposes and not in a literalistic manner. He submits that HMRC’s construction of section 43(8)(c) will in this case frustrate the achievement of the objectives of environmental benefit. If a certificate is issued the Site will be reclaimed and the source of pollution to surrounding areas will be removed. In its place there will be waste which will be contained within the Site so as to prevent seepage. Mr Sheridan submitted that the objective of section 43B is to provide for reclamation of specific land by the removal of pollutants which are causing or have the potential to cause pollution. “Activities” can only be “relevant” if they were the cause of the actual or potential adverse environmental effect which is to be rectified or prevented. If any future activity will not cause that effect, it cannot be a continuation of the old activity.

In his skeleton argument, Mr Sheridan seemed to suggest that any consideration of future activity was irrelevant to whether the relevant activity had ceased. But this was on the basis that the disposal of waste as landfill in a manner which permitted leakage into the aquifer had irrevocably ceased. He readily accepted that if Augean was preparing to resume landfill in a manner which permitted leakage into the aquifer, it would not only be relevant to consider proposed future activity but it would lead to the conclusion that the relevant activity had not ceased. The passage of time since 1993 would not in those circumstances mean that the relevant activity had ceased. In fact, however, not only does Augean not propose to dispose of waste as landfill at the Site in that way, it would not be permitted by the Environment Agency and would thus be unlawful. The closure notice had put an end to any possibility of that activity. Further landfill will have to be on the basis of containment, as prescribed by the Landfill Regulations 2002, and, Mr Sheridan submitted, this will constitute not only a new and different activity but one which is designed to prevent pollution. A construction of section 43B which did not permit the issue of a certificate in these circumstances would, he submitted, frustrate the purpose of the section as an encouragement to the reclamation of the land.

Whether Augean is entitled to a certificate under section 43B is a question of construction of the section and its application to the facts of the case. I have no difficulty with Mr Sheridan’s submissions as to the general purposes of landfill tax and its exemptions, which were accepted by HMRC, and that the section should be construed against the background of these purposes: see Customs and Excise Commissioners v Parkwood Landfill Ltd [2002] STC 1536 at para 20 per Aldous LJ.

Mr Sheridan had two main submissions on the construction of section 43B. First, many of the provisions emphasise the need to remove the pollutants and their potential to cause harm. Section 43B(7) defines the objects of a qualifying reclamation. It is common ground that section 43B(7)(b) applies in this case, although section 43B(7)(a) may well also apply. The object under section 43B(7)(b) is “reducing or removing the potential of pollutants to cause harm.” This must be achieved by a reclamation which “constitutes or includes clearing the land of pollutants which are causing harm or have the potential for causing harm”: section 43B(8)(a). The object of the reclamation is underscored by section 47A(3)(c) which has the effect of terminating the exemption from landfill tax on material extracted from a site “when pollutants have been cleared to the extent that the potential for harm has been removed”.

Mr Sheridan submits that these provisions inform the true construction of sub-sections (8)(c) and (10)(a). Where those provisions refer to activities which “have ceased or have ceased to give rise to any pollutants in relation to that land” and to an activity as having “resulted in the presence of pollutants in, on or under the land in question”, they are referring to pollutants having the potential to cause harm. If the new activity involves the deposit of hazardous materials in a manner which nullifies their potential to cause harm, they are not “pollutants” within the meaning of sub-sections (8)(c) and (10)(a) as applied to future activity.

The difficulty with this submission, attractively developed by Mr Sheridan, is that it does not take account of the clear contrast between the terms of sections 43A(3)(c), 43B(7) and 43B(8)(a), which define and qualify reclamation, and the terms of section 43B(8)(c) and (10)(a) which are directed to whether the relevant activity has ceased. While the former are to a large extent built round the potential of pollutants for harm, and its removal, the latter are directed only at the presence of pollutants in, on or under the land. As Mr Puzey for HMRC submits, a pollutant is a substance capable of causing pollution. The fact that the manner in which such substances are deposited at the Site will, or is anticipated to, remove the risk that they will cause pollution does not mean that, as substances, they are not pollutants. If section 43B(8)(c) and (10)(a) are construed as Mr Sheridan suggests, there will be imposed on HMRC an obligation to assess whether the proposed method of disposal will or is likely to remove the potential for harm. This is not obviously within the expertise of HMRC and one would expect such an obligation to be clearly spelt out. Mr Sheridan responds by pointing to the requirement on HMRC to make an assessment under section 43B(7) but that is an assessment of the object, i.e. purpose, of the proposed reclamation.

I conclude that section 43(8)(c) and (10)(a) cannot be construed with the qualification advanced by Mr Sheridan.

As an alternative route to the same result, Mr Sheridan advanced submissions as to the true meaning in section 43B of the word “pollutant”. The previous submission was applicable even if Mr Puzey’s suggested meaning of the word, a substance capable of causing pollution, was adopted. But, in his alternative submission, Mr Sheridan submitted that this was not the true meaning. The proper meaning could be discerned by examining definitions of “pollution” and “pollutant” in other legislation. He referred me to the definition in reg 2(1) of Pollution Prevention and Control (England and Wales) Regulations 2000 (“the 2000 Regulations”):

“pollution” means emissions as a result of human activity which may be harmful to human health or the quality of the environment, cause offence to any human senses, result in damage to material property, or impair or interfere with amenities and other legitimate uses of the environment; and “pollutant” means any substance, vibration, heat or noise released as a result of such an emission which may have such an effect.”

“Emission” is defined in reg 2(1) in four different ways, depending on whether it applies to Part A or Part B installations or mobile plants, but in each case it involves a release of substances from sources in the installation or plant into the air, water or land.

The 2000 Regulations were made pursuant to section 2 of the Pollution Prevention and Control Act 1999 (“the 1999 Act”). Section 1(1) provides that the purpose of section 2 is to enable provision to be made for or in connection with, (a) implementing Council Directive 96/91/EC concerning integrated pollution prevention and control, (b) regulating activities which are capable of causing any environmental pollution, and (c) otherwise preventing or controlling emissions capable of causing any such pollution, Section 1(2) defines “environmental pollution” to mean “pollution of the air, water or land which may give rise to any harm” and, for the purposes of that definition “pollution” as defined as including “pollution caused by noise, heat or vibration or any other kind of release of energy”. Section 2(1) provides that regulations may make provision for any of the purposes listed in Part 1 of Schedule 1, and section 2(2) requires such provision to be for or in connection with any of the matters mentioned in section 1(1). Part 1 of Schedule 1 contains 20 paragraphs setting out the purposes for which the regulations may make provision, of which paragraph 1 is directed at emissions.

In reliance on the definitions in the 2000 Regulations, Mr Sheridan submitted that a pollutant in section 43B must be a substance which is or is capable of being released as a result of an emission. As the hazardous waste to be deposited at the Site following the proposed reclassification will be contained within impermeable voids dedicated to such waste, there will be no emission or release.

Reliance on the definitions in the 2000 Regulations faces a number of difficulties. First, they were not made until four years after sections 43A and 43B were enacted. Mr Sheridan submitted that there was already in existence a similar definition in the Environmental Protection Act 1990, but the definition in section 1(2) (now repealed) of that Act is of “pollution of the environment”, being:

“pollution of the environment due to the release (into any environmental medium) from any process of substances which are capable of causing harm to man or any other living organisms supported by the environment.”

In my judgment, a definition of one phrase or concept (pollution of the environment) for the purposes of one statute cannot be a sure guide to the meaning of a different word (pollutant) in a different statute.

The second difficulty is that the Finance Act 1996, while containing many definitions, does not incorporate by reference any definition of pollution or pollutant in other statutes. Mr Sheridan submitted that all these various statutes are fundamentally dealing with the same subject, the control of pollution and the protection of the environment, and should therefore be read together.

There is in a general way a link between these various pieces of legislation. In Customs and Excise Commissioners v Parkwood Landfill Ltd, Aldous LJ said at para 9:

“Landfill tax was introduced as from 1 October 1996 by the Finance Act 1996 (the 1996 Act). The tax is a creature of domestic statute in that it is not a tax required under any provisions of Community law. However the United Kingdom does have obligations in Community law to take appropriate steps to encourage the prevention, recycling and processing of waste under EC Council Directive 75/442 of 15 July 1975 on waste (OJ :194 25.07.75 p 39). The Environmental Protection Act 1990 is the key piece of domestic legislation enacted to meet this obligation. Landfill tax can therefore be seen as a separate domestic initiative aimed at protecting the environment and securing the ambitions of the directive.”

It is well established that Acts which are in pari materia are to be read together. It is stated in vol 44(1) Halsburys Laws (4^th ed reissue) at para 1220:

“Acts are said to be in pari materia if they are (1) Acts which have been given a collective title; or (2) Acts as to which it is stated in the latest of the Acts that they are to be construed as one; or (3) Acts having short titles that (apart from the calendar year) are identical; or (4) other Acts which deal with the same subject matter on the same lines. Acts in pari material ‘are to be taken together as forming one system, and as interpreting and enforcing each other’.”

I do not consider that it would be right to treat a taxing statute, albeit one with the purposes identified earlier in this judgment, as being in pari materia with a wide range of pollution control legislation. They are not statutes which deal with the same subject matter on the same lines. The Finance Act 1996 is not concerned with the means by which polluting activities are controlled and regulated, and the definitions to which Mr Sheridan has referred are adopted in that context. Vol 44(1) Halsburys Laws addresses the position where statutes are not in pari materia at para 1485:

“Comparison between Acts not in pari materia or the decisions on them affords no reliable guide to their construction, since the same words used in different statutory codes may have different meanings in each code, according to the intentions of the Acts and the mischief they are designed to prevent. This does not mean, however, that assistance may not be derived from contrasting the language used in different Acts dealing with the same topic.”

It is striking that, while the Finance Act 1996 contains no definition of “pollutant”, it has been considered appropriate to include express definitions of “pollution of the environment” for the purpose of two statutes, and “pollution” and “pollutant” for the purpose of the 2000 Regulations. Those definitions have not been incorporated into the Finance Act, whereas, for other purposes, Part III of the Finance Act has been amended to incorporate express reference to the 2000 Regulations: see sections 43A(4) and 66(ba).

In my judgment it follows that pollutant is to carry its ordinary meaning in the Finance Act, just as it has been held to do in other contexts: see R v Dovermoss Ltd [1995] Env LR 258 and Express Ltd v The Environment Agency [2004] EWCH 1719 (Admin). In the latter case, reference was made to the definition of “pollution of the environment” in section 1 of the Environmental Protection Act 1990 which was accepted as appearing “in a statement dealing with the same area of the law” as the Water Resources Act 1991.

As a matter of ordinary English, pollution is the act of polluting or, depending on its context, the product of polluting activity, while a pollutant is “a polluting agent or medium” (Oxford Dictionary) or, as Mr Puzey puts it, a substance capable of causing pollution. That this is the meaning of pollutant in section 43B is clear from the reference in section 43B(7)(b) to “the potential of pollutants to cause harm”.

It follows, in my judgment, that Augean’s appeal must fail. While the reclamation required by section 43B(7)(b) must reduce or remove the potential of pollutants to cause harm, section 43B(8)(c) requires that the activity should not result in the “presence of pollutants” in, on or under the land. As Augean’s proposed landfill activity will result in the presence in the land of substances capable of causing pollution, the relevant activity has not ceased and section 43B(8)(c) is not satisfied.

It was suggested that the result of this construction of section 43B is to frustrate and prevent the reclamation of the Site, which is uneconomic without the issue of a certificate under section 43B. If, however, Augean were to use inert rather than hazardous waste as the landfill material, there would, as HMRC accepts, be no bar to the issue of a certificate. Augean’s difficulty, as it appears from the evidence, may be different: it may have planning difficulties if the Site is used for non-hazardous waste, and it may need the higher price for the deposit of hazardous waste to make the project economic.

For the reasons given above, I dismiss the appeal.