NHBC guidance - is this for real re using materials?

[Jimoz]

Regulation and compliance
Changes to land ll legislation

Introduction
In April 2018, changes were made to the Landfill Tax which may have an impact on residential development sites. Changes in the Finance Act 1996 implemented from 1 April 2018 now allow an increase in focus from the EA and HMRC on the improper management of soils use and re-use in the development and waste sectors, to enable HMRC to recover Landfill Tax at the full rate for illegally deposited waste. Currently, this only affects those operating in England and Wales. The changes have come about following identification of a number of abuses of both the environmental permitting system and the inappropriate and incorrect use of the Definition of Waste: Development Industry Code of Practice (DoWCoP), which is also sometimes referred to as the CL:AIRE Code of Practice and/or the Materials Management Plan (MMP). Going forward, house builders will need to be confident that materials are being managed appropriately on site within the necessary permitting, exemptions and/or DoWCoP declaration and MMP constraints or requirements, or you, as well as your contractors, groundworkers and consultants, could all be jointly liable for Landfill Tax.
The legal framework
Fundamentally, Part III of the Finance Act 1996, which primarily encompasses Landfill Tax, was amended from 1 April 2018 with the scope of Landfill Tax extended to cover any site (not just landfills) that is determined as an “illegal deposit”. This does not only include fly tipping, poorly managed or illegal landfills but also development or construction sites that may be operating without the appropriate environmental permit, appropriate EA Exemption or correctly managed and validated DoWCoP
or MMP, or using materials not fully compliant with the EA Aggregates protocol.
The consequences of breaches to any of the aforementioned can be summarised as follows:

Images courtesy of Vertase FLI
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Sites in England which operate without the necessary environmental permit or exemption, and/or are incorrectly operating under the DoWCoP, could be investigated and be found liable for Land ll Tax at the standard rate (currently £88.95 per tonne) on all material deposited on the site
Similarly, sites in Wales will be liable for land ll disposals tax (the name of the tax from 1 April 2018) at an unauthorised disposal rate of £133.45 per tonne (i.e. 150% of the rate in England)
All materials identi ed on “illegal sites” from 1 April 2018 could now be subject to Land ll Tax, even if materials were deposited before that date
In addition to being liable for Land ll Tax, any person who deposits waste or knowingly permits the deposit of waste at an illegal site could also face a separate criminal prosecution for waste offences
HMRC will also be able to charge an additional penalty of up to 100% of the Land ll Tax due and will have the right to prosecute those who do not pay
The Land ll Tax will be applied at the standard higher rate, irrespective of whether the waste is ‘inert’.

Page 16 | November 2018 | Issue 24 | Technical Extra
Changes to land ll legislation
Guidance (continued)
What is an ‘illegal deposit’?
Activities that, if not managed correctly, could be determined as an “illegal deposit” with the application of Landfill Tax include but are not limited to:

• Excavation and re-use of soils and other materials that could be considered to be waste on site
• General cut to ll earthworks, unless excluded under the Waste Framework Directive Exclusion
• Demolition of structures – generating ‘waste’ which is crushed and re-used in piling mats
• Replacement of remediated materials as development platforms
• Off-site disposal of materials from arisings that a haulier takes to another site and places as ll
• Re-using foundation arisings in public open space (POS) areas
• Import of materials (e.g. 6F2 without the full WRAP Quality Protocol documents) for road/drive build-up
• Import of subsoil from other development sites or soil manufacturers to make up levels.
  As the ‘client’ or as the ‘contractor’ you are responsible for ensuring that all deposits or materials placed on your sites of re-used materials (either from the site or imported to the site) are legal and either permitted, exempt from permits, imported under an approved protocol such as the WRAP or managed via the CL:AIRE DoWCoP.
  Failure to ensure this means you could be liable (with others involved in the project) for the Landfill Tax on deposits determined as illegal. Contractors placing the material, those providing the material, and consultants or specialists that are involved or specifying work may also be liable to
  a degree.

All this can be undertaken without exposure to Landfill Tax with appropriate permitting or re-use protocol but, if not managed correctly, could result in the material being determined as an ’illegal deposit’. In such cases, any EA action to pursue an environmental prosecution for failures to follow legislation may also result in HMRC seeking recovery of Landfill Tax and applying the additional penalties.
How do you avoid the tax liability?
The appropriate use of the CL:AIRE DoWCoP and the U1 exemption (or similar), following the WRAP Quality Protocol fully or using a Standard Rules or Bespoke ‘Deposit for Recovery’ permit should ensure compliance. It is essential, now more than ever, to ensure full compliance with the requirements of the available guidance and conditions, and be able to demonstrate this through appropriate documentation, recording and reporting.
At a site level, it remains essential that all materials and their movements are thoroughly tracked, tested, recorded and reported as described in the site’s remediation strategy, method statement and MMP or permit, exemption or protocol conditions.
Failure to follow the MMP, retrospective application of an MMP and/or failure to provide a validation report that adequately addresses the aforementioned requirements could result in sites being classed as an illegal deposit and being pursued by HMRC as outlined. It is vital to apply for, deploy or register an appropriate permit or exemption and follow its conditions.
It is also important to reference the EA Aggregates Quality Protocol. This is a mechanism by which third parties can substantiate the fact that their ‘recycled aggregate’ has ceased to be a waste and as such can be used as freely as a virgin quarried product. Importers and users of recycled aggregates need to satisfy themselves that any materials meet the requirements for an EA Quality Protocol Aggregate’.
What is different in reality?
The amendments to the Finance Act 1996 mean that any company or individual involved in a project identified as failing to have the correct or properly administered environmental permit, exemption or DoWCoP MMP could be deemed to have illegally deposited the waste. The details of all those involved in the project could be provided to HMRC, which will pursue the collection of the Landfill Tax set out in this section, in addition to any other enforcement action taken by the EA. The applicable parties could include developers, consultants, contractors, hauliers and third party site operators, all of whom may be jointly and severally liable for this tax, together with any other resultant penalties.
Regulation and compliance

Image courtesy of Vertase FLI

Technical Extra | Issue 24 | November 2018 | Page 17
Guidance (continued)

Cl:AIRE Definition of Waste Code of Practice: DoW:CoP Joomla! - the dynamic portal engine and content management system www.claire.co.uk	EA/WRAP Aggregates Protocol 2013: https://www.gov.uk/government/publications/quality- protocol-production-of-aggregates-from-inert-waste
Landfill Tax on waste disposed of at unauthorised sites: https://www.gov.uk/guidance/landfill-tax-on-waste-disposed-of- at-unauthorised-sites	U1 exemption: https://www.gov.uk/guidance/waste-exemptions-using- waste
Landfill Tax: disposals not made to landfill sites: https://www.gov.uk/government/publications/landfill-tax- disposals-not-made-at-landfill-sites/landfill-tax-disposals-not- made-at-landfill-sites	Waste recovery: https://www.gov.uk/guidance/waste-recovery-plans-and- permits
Excise Notice LFT1: a general guide to Landfill Tax https://www.gov.uk/government/publications/excise-notice-lft1- a-general-guide-to-landfill-tax/excise-notice-lft1-a-general- guide-to-landfill-tax#two-rates-of-tax

 

[Left hooker]

Basically everything is a waste

 

[V8Druid]

a desperate tax system clutching at every opportunity to grab anything they can ..... careful where you take a sh*t

 

[JD450A]

To be very honest, it's a very poorly written article with a lot of scaremongering and terms which are difficult to understand to a layman.

"Excavation and re-use of soils and other materials that could be considered to be waste on site " is the key phrase!

For any product to become waste, it must be dis guarded. This is the key point in the cycle, right at the start that has to be identified and nullified. As with all legal bollocks it's in the wording... As sad as it is, calling Material muck, arisings, spoils to a site inspector is as likely to trigger a uneducated university grad as telling them that there are only two sexes. Whereas separating gear (Called topsoil, subsoil, stone etc) and storing it for later is perfectly acceptable. I s**t you not.

NHBC seem to of got far too caught up with stuff on site in the article. The main thing the EA is aiming to clamp down on is the movement of spoil from site to site without any chain of paperwork. It's fully understandable why and to be honest the HMRC thing is just another tool for them, Because atm it's no secret that running muck bent is very profitable! and most that are f***ed over for it don't get a fine anywhere near what it should be.

Key thing they are trying to stop is the likes of contaminated material (e.g heavy metals or hydrocarbons) being mixed with good material to reduce the contamination over the whole volume of material and then loosing it in landscaping! no paperwork on a 50 acre site, and a 1 acre patch that has contamination, you will see a couple lorry loads offsite for show and then the other 100 lorries tipping in the main heap....

Back to the actual rules - On site is simple, keep your muck orderly, dry and segregated.... if you have contaminated material keep it separate and either dispose on site in a cell after discussing with EA (which fyi is normally the preferred option anyway) or pay the money for correct disposal. Uncontaminated good material can be reused as it was never discarded..... at the end of the job keeping things orderly and knowing what is what also pays dividends as you have known material which is suitable for reuse on a U1 exemption or Claire.

Offsite is a bit more complicated, the days of "levelling up a field" are long f****ng gone! I won't go into Claires as I don't know enough about them, we only do smaller stuff so a U1 is plenty for us. They allow Suitable material up to 1000t of clean uncontaminated soils or 5000t of clean uncontaminated rubble or stone. You can have both BUT the limit is 5000t TOTAL. They can only be used for construction purposes! such as building a road, landscaping a garden, creating a level pad for a yard etc.

It takes 10 mins to register a U1, it's not long and makes it legal to shift gear in and use from another site. Not hard at all, and if used in the proper situation they are perfectly legitimate..

 

[Left hooker]

To be very honest, it's a very poorly written article with a lot of scaremongering and terms which are difficult to understand to a layman.

"Excavation and re-use of soils and other materials that could be considered to be waste on site " is the key phrase!

For any product to become waste, it must be dis guarded. This is the key point in the cycle, right at the start that has to be identified and nullified. As with all legal bollocks it's in the wording... As sad as it is, calling Material muck, arisings, spoils to a site inspector is as likely to trigger a uneducated university grad as telling them that there are only two sexes. Whereas separating gear (Called topsoil, subsoil, stone etc) and storing it for later is perfectly acceptable. I s**t you not.

NHBC seem to of got far too caught up with stuff on site in the article. The main thing the EA is aiming to clamp down on is the movement of spoil from site to site without any chain of paperwork. It's fully understandable why and to be honest the HMRC thing is just another tool for them, Because atm it's no secret that running muck bent is very profitable! and most that are f***ed over for it don't get a fine anywhere near what it should be.

Key thing they are trying to stop is the likes of contaminated material (e.g heavy metals or hydrocarbons) being mixed with good material to reduce the contamination over the whole volume of material and then loosing it in landscaping! no paperwork on a 50 acre site, and a 1 acre patch that has contamination, you will see a couple lorry loads offsite for show and then the other 100 lorries tipping in the main heap....

Back to the actual rules - On site is simple, keep your muck orderly, dry and segregated.... if you have contaminated material keep it separate and either dispose on site in a cell after discussing with EA (which fyi is normally the preferred option anyway) or pay the money for correct disposal. Uncontaminated good material can be reused as it was never discarded..... at the end of the job keeping things orderly and knowing what is what also pays dividends as you have known material which is suitable for reuse on a U1 exemption or Claire.

Offsite is a bit more complicated, the days of "levelling up a field" are long f****ng gone! I won't go into Claires as I don't know enough about them, we only do smaller stuff so a U1 is plenty for us. They allow Suitable material up to 1000t of clean uncontaminated soils or 5000t of clean uncontaminated rubble or stone. You can have both BUT the limit is 5000t TOTAL. They can only be used for construction purposes! such as building a road, landscaping a garden, creating a level pad for a yard etc.

It takes 10 mins to register a U1, it's not long and makes it legal to shift gear in and use from another site. Not hard at all, and if used in the proper situation they are perfectly legitimate..

There was a meeting with the ea and haulers down here few months back
They said even good topsoil if taken from site and stores at your own place for later use is classed as waste unless treated and tested
So basically Cornwall is f***ed for topsoil as most areas are contaminated and what little good soil there is ain't worth bothering with to get it tested and declassified and retested every 6 months

Cornwall council tryed to get a higher level allowance allowd as we naturaly have higher levels of heavy metals in soils down here but got rejected in favor of a Nationwide rule

 

[DaveDCB]

So out of interest how do you go about legally ‘levelling up abit of a field’? These days? With clean inert as dug material?

 

[V8Druid]

So out of interest how do you go about legally ‘levelling up abit of a field’? These days? With clean inert as dug material?

tip it in there and level it wiv yer JakieB

'Twas a hell of a hole

 

[JD450A]

So out of interest how do you go about legally ‘levelling up abit of a field’? These days? With clean inert as dug material?

Would have to get Planning, then most likely a Claire and have all the fill brought in from one source and tested

 

[V8Druid]

Would have to get Planning, then most likely a Claire and have all the fill brought in from one source and tested

Check ..... and I can categorically confirm it was all the finest Werngounsel spoil ... all undisturbed for millenia

 

[DaveDCB]

Would have to get Planning, then most likely a Claire and have all the fill brought in from one source and tested

So basically stockpile said material in said hole and level off to seal it nice and flat? Just like everybody does...

 

[Left hooker]

Would have to get Planning, then most likely a Claire and have all the fill brought in from one source and tested

Under Claire you can't charge for tipping
But digger hire to level off load costs the same as a load

 

[Left hooker]

So basically stockpile said material in said hole and level off to seal it nice and flat? Just like everybody does...

And get some grass seed down quick