John Jones Civil Engineering and Groundworks Ltd v The Commissioners for HMRC

Neutral Citation: [2025] UKFTT 00918 (TC) FIRST-TIER TRIBUNAL TAX CHAMBER Case Number: TC09599 By remote video hearing Appeal reference: TC/2020/04017 Landfill tax – did particular facts mean a decision to assess was unfair – held no. Heard on: 8 and 9 May 2025 Judgment date: 31 July 2025 Before TRIBUNAL JUDGE SARAH ALLATT DR CAROLINE SMALL Between JOHN JONES CIVIL ENGINEERING AND GROUNDWORKS LTD Appellant and THE COMMISSIONERS FOR HIS MAJESTY’S REVENUE AND CUSTOMS Respondents Representation: For the Appellant: Mr Tristan Thornton For the Respondents: Mr James Puzey of counsel, instructed by the General Counsel and Solicitor to HM Revenue and Customs DECISION INTRODUCTION 1. This appeal relates to an assessment of Landfill Tax of £547,042 and related interest of £42,803.80. The assessment is based on a deposit of waste material, actually made in 2014, but deemed to have occurred on 1 April 2018 under the deeming provisions of Paragraph 31 Schedule 12 Finance Act 2018. BACKGROUND 2. waste at Bage Farm, Lulham, Herefordshire. Between 7 July 2014 and 15 November 2014 the Appellant disposed of 410 loads of This disposal was the subject of a criminal prosecution. The Appellant pleaded guilty 3. and received a fine which included an amount of £15,822, which was the amount of Landfill Tax that the court calculated that the Appellant had avoided. The Appellant appealed against the sentence but it was confirmed by the Crown Court on 7 December 2018. HMRC started enquiring into the matter in late 2018. They issued an assessment on 23 4. October 2020 and the appeal is against this assessment and associated interest. HMRC will credit the Appellant for the amount of the fine confirmed by the Crown Court that was calculated to be related to Landfill Tax. 5. The detailed grounds of appeal are covered below, but a large part of this case involves the fact that at some point before February 2018 the landowner had discovered Australian swamp stonecrop (Crassula helmsii ‘Crassula’) on the site where the waste had been dumped and had been informed that it would be illegal to disturb the Crassula. This made removal of the waste from the site complicated at best and potentially impossible. GROUNDS OF APPEAL 6. In the original Notice of Appeal, the Appellant set out 3 Grounds of Appeal. Two of these were withdrawn before the hearing, with the remaining original Ground of Appeal being (broadly) that HMRC did not take a number of issues into account when making the assessment. 7. Shortly before the hearing, the Appellant filed a Skeleton Argument setting out what HMRC said were new Grounds of Appeal, and the Appellant said were (mainly) not new Grounds, but further particularising the first Ground. 8. These issues were: (1) Whether the assessment made was void on the basis that it failed to use a permitted method of calculation. In the alternative, whether the assessment should be voided as failure to use a permitted method of calculation and related errors meant it could not have been made to best judgment. (2) Whether the assessment made was unlawful as there was no exercise of HMRC’s discretion not to assess, or at least that it was unreasonable having failed to take into account or give sufficient weight to reasons why the Appellant had not removed the waste by 1 April 2018 in order to avoid liability. (3) Whether due to the inability, inadvisability or impracticality of moving the waste, it was conspicuously unfair for HMRC to pursue the assessment such that it should be quashed. Whether due to the inability, inadvisability or impracticality of moving the (4) waste, the Appellant had a reasonable excuse for the waste remaining in situ by 1 April 2018 and thereby being deemed to have made a deposit on that date. (5) Whether the circumstances were such that it would not be in the interests of justice to charge interest at the prescribed rate or at all even if not amounting to a reasonable excuse. 9. HMRC objected to these new Grounds of Appeal on the basis that they were very late, that it would be prejudicial to HMRC to allow them as HMRC did not have time to investigate some of the matters thoroughly, and that this case had already been running for many years and further delay would not be in the interests of justice. WITNESS EVIDENCE 10. We heard from 3 witnesses: Miriam Jones a director of the Appellant, Peter Weaver, who had been involved in various planning applications in relation to the site, and Mike Graham, officer of HMRC. 11. We set out the evidence of the witnesses below, drawn from their witness statements and oral evidence at the hearing. Evidence of Peter Weavers 12. Mr Weavers is the sole proprietor of a business specialising in town and country planning applications and environmental issues. We found him to be a clear, credible and helpful witness. Mr Weavers explained that he was engaged to address matters by JJCE Ltd in December 2014. His role was to liaise with the County Council as the Local Planning Authority (LPA) and with the Environment Agency (EA) and to prepare and submit a retrospective planning application for consent for the works carried out to that date and for the subsequent works to completion and long-term rehabilitation of the land. 13. He advised that consent was unlikely to be forthcoming due to the fact that a ‘base line’ for the site had not been established before the waste disposal and was therefore now not possible to determine, and also that the application would generally require biodiversity surveys, and the site had been unable to be surveyed for its biodiversity because this was best done in the spring and summertime. Nevertheless, as the requested an application, this was submitted on 5 January 2015. It was validated (which confirmed that this was a matter that did require consent) by the LPA on 23 January 2015. 14. The planning application was refused on the 30 April 2015 and the reasons were, as expected insufficient assessment of biodiversity and ecology among other reasons. 15. Mr Weavers advised JJCE not to appeal, and he contacted the LPA and the EA to try and establish away forward. He did not find either of these authorities willing to engage. He did manage to organize a meeting in January 2016 involving himself, Mr Jones (Managing Director of JJCE) and representatives of LPA and the EA. It was agreed out that meeting that a survey of the site should be commissioned to establish whether great crested newts or other protected species were present and to recommend as a result the detail surrounding any scheme to that maybe necessary to preserve wildlife at the site. JJCE commissioned the study which was undertaken by Just Mammals with the 16. approval of the Local Planning Authority in the spring and early summer of 2016 and Just Mammals issued their report in late June 2016. 17. This report contains the following recommendation ‘due to this being a potential enforcement case making adequate recommendations at this point in the process is difficult. The best case scenario is for the ponds to be in reinstated in a similar form but at least partly protected from the grazing efforts of the livestock and allowed to become more vegetative in order to facilitate breeding efforts [of great crested newts]. Deeper sections, in order to avoid failed breeding efforts due to drying out are also desirable. Habitat enhancement can take place on a smaller scale than the removed ponds with quality habitat being favoured over quantity.’ 18. Mr Weavers explained that he that he attempted regular contact with the LPA and the EA in 2016 and 2017 but he got no substantive responses. He said that throughout this period JJCE and the directors expressed their readiness to participate in and (subject to detail) fund the work involved in restoring the site 19. Mr Weavers was informally advised by the landowner that Crassula had been discovered on his land and this should not be removed from the site but should be buried in situ and at depth. He considered the discovery of the weed and the accepted method of treatment rendered any plan or attempt to remove waste from the site to be at best ill advised and at worst unlawful. 20. Mr Weavers explained that on the evening of 27 March 2018 the landowner called him and explained that he had received a letter from the LPA which had issued a notice that the recommendations set out in the Just Mammals report should be implemented and completed within one year. The landowner was upset as he now had an enforcement notice requiring him to do something which he had been told by another organisation was illegal. 21. Mr Weavers immediately contacted for LPA and wrote to them on 28 March 2018 explaining that the notice suggested a course of action that would have involved the landowner in unlawful activity and that it should be withdrawn in favour of constructive discussions leading to treatment of the weed and full remediation of the type that he had been pressing for since mid 2015. The LPA refused and Mr Weavers then agreed to act for the landowner in pursuing an appeal against enforcement. 22. This appeal was subject to considerable delays but on the final morning (21 August 2019) that statements were due the LPA notified the Inspectorate that they were withdrawing the enforcement notice and therefore the planned hearing had been cancelled and the appeal process closed. Mr Weavers lodged a request for an award of costs against that LPA which was accepted in full by the Secretary of State. The LPA paid the sums requested without further argument. Evidence of Miriam Jones 23. We treat Mrs Jones’s evidence with caution. In places Mrs Jones stated as fact something that was disputed by other evidence, and that it would appear she could have no definite knowledge of. However, there are also areas of Mrs Jones’s witness evidence that we prefer, in areas where it contradicts (hearsay) evidence by HMRC. 24. Mrs Jones stated that the works carried out at Bage Farm were at the request of the landowner. There were two ponds that were causing problems as lambs from the farm kept getting stuck in them, and the farmer wanted them filled in. 25. The material used to infill the ponds originated from the Heineken brewery in Hereford. Mrs Jones described this as ‘neutral material’ and as ‘soil and stones’. Mrs Jones confirmed she did not personally see the waste being disposed of at the site. 26. Mrs Jones stated in her witness statement that ‘the site of the ponds was infested by a notifiable invasive species, namely Crassula. I attach the reports of expert Mr Baker as exhibit MJ1. The reports confirm that Crassula was present at the site well before JJCE attendance’. 27. Mrs Jones stated that ‘JJCE made offers in mitigation to both the Environment Agency and the Herefordshire County Council such as would have paid for the removal of the materials from the site, creation of alternative ponds away from the site of the Crassula’ but that these offers were not accepted. 28. Mrs Jones confirmed that she was not in possession of the ‘stop notice’ that she had been told had been issued to the landowner in relation to the site, due to the presence of the Crassula, but she was aware of it. 29. Mrs Jones disputes the calculation of the tonnage of the waste disposed of at the site. She stated that the calculation of 410 loads of 15 tonnes ‘is in no way accurate and no evidence has ever been served to date to confirm that each load represented a full or accurate 15 tones’. Furthermore she stated that ‘the methods used to calculate the volume of waste ‘did not take into account materials that were reused or recycled at the site and made no distinction between the different tonnages of the various materials excavated and provided for no evidence of weight as JJCE Ltd were not charging for soil removal on a weight basis.’ She also said that ‘many of the waste notes are incomplete or duplicated and are 30. therefore unreliable as a source of evidence’. 31. Mrs Jones estimated that the cost to JJCE of removing the waste, had they been allowed to do so, would have been approximately £60,000, being £6,000 for the digging and removal and £54,000 of landfill tax. We were not provided with how she calculated this amount. 32. Mrs Jones stated that her estimate of the tonnage of the waste disposed at the farm was around 4000 tonnes. This is lower than the estimate made by HMRC, but well in excess of the legal limit of 1000 tonnes allowed under the U1 permit that the company holds. 33. Mrs Jones accepted that her statements to the Crown Court in the criminal proceedings around the amount of waste had not been true. It was put to Mrs Jones that the waste deposited at the site was not only soil, but also 34. contained metal and plastic. She denied this. 35. In addition she stated that if the waste had become contaminated by someone else placing waste there, then had JJCE been able to remove the waste, JJCE would have further processed the waste, removing any contaminants and leaving the vast majority of the waste as ‘inert’. 36. Mrs Jones gave further evidence after the evidence of Mr Graham (below). Mr Graham had stated that the farmer was, HMRC believed, unaware of the disposal of the waste and had a broken leg at the time of the disposal. 37. Mrs Jones was unaware of any injury to the farmer, and was certain that he was aware of (and had indeed asked for) the disposal of the waste at the site. Evidence of Mr Graham 38. Mr Graham is an HMRC Officer in the Environmental Taxes team. We found him clear and straightforward. He explained the history of HMRC’s involvement prior to the issue of the Notice of Assessment. 39. Mr Graham had met Mrs Jones of JJCE in November 2018. She had told him that the landowner had asked JJCE Ltd to fill in the ponds, and that this had been done with soils. She referred to the U1 permit that the company had from the environment agency [that would allow up to 1000 tonnes of waste to be used for certain purposes]. Mr Graham had viewed waste transfer notes at the company and Mrs Jones had stated to him that the lorries used could only carry 15 tonnes rather than the 20 tonnes shown on the notes. Mrs Jones agreed to provide the transfer notes to HMRC but did not later do so. 40. The Environment Agency provided the transfer notes in due course and confirmed that the material deposited was not covered by the U1 exemption. 41. Mr Graham accepted that the lorries could carry a maximum of 15 tonnes. He used this, together with the waste transfer notes showing Bage Farm, to calculate the Landfill Tax due at £88.95 per tonne. 42. Mr Graham had also visited the farm with a colleague and taken photographs of the site and met the farmer. We were shown the photos (see consideration of photo evidence below). He confirmed that he had seen metal, plastic and larger piles of rubble on the site. 43. Mr Graham explained that he was aware of the complications in removing the waste due to the Crassula. He was aware of the ‘stop notice’ and accepted that the waste could not be removed. 44. He set out what HMRC had considered in this case. As this was one of the first cases where Landfill Tax was to be charged in relation to a disposal at an unauthorised site, the case had been considered by his wider team, the policy team, the governance board for his area and the Tax Assurance Commissioners which is chaired by the CEO of HMRC. 45. He explained that they had also considered whether the landowner should have been issued with a notice of assessment. HMRC had been told that the farmer was unaware of the waste disposal and that at the time of the disposals he had a broken leg and could not get to the site. Therefore HMRC considered that the landowner would not meet the ‘knowingly cause or permit the disposal to be made’ clause of the legislation. 46. HMRC also took into account the fact that the directors of the Appellant were unaware of the [new in 2018] provisions in relation to Landfill Tax in these circumstances, and therefore decided not to charge the Appellant a failure to notify penalty. 47. Mr Graham was questioned closely by Mr Thornton on his decision making process in relation to the assessment. He was asked whether, once he had decided that the Appellant met the criteria to be assessed on the tax, whether he had considered whether or not the Appellant should be assessed. Mr Graham replied ‘I decided the assessment should apply to the Appellant.’ He confirmed the fact that the Appellant was not able to remove the waste was always a consideration throughout the entire case, but that it was ‘not my authority to waive someone’s tax’.’ And ‘not in my power not to assess a tax that is liable’. Evidence contained in the bundle 48. We were provided with two hearing bundles, one of 1107 pages (the main bundle) and one of 1023 pages (the supplementary bundle) in addition to the authorities bundle. We draw out some salient points from the written/photographic evidence provided in the bundles here. 49. The report prepared by an expert witness to the criminal trial, Mr Andrew Baker, says [1062 main bundle] ‘I have seen no evidence to demonstrate that Crassula is present within Ponds A and B as a consequence of infilling and it is the testimony of Mr Sims that this invasive plant has been present within the ponds for a period of ten years.’ 50. We note that the plans of the site (in many places in both bundles but for example 935 of the supplementary bundle) show that the ponds are present in a field where the main access would be from a road adjacent to the farmhouse. 51. There are multiple places in the bundle where there is reference to the use of the fields as grazing for sheep. 52. The report prepared by GWP consultants (p922 onwards of the supplementary bundle) contains photographs and descriptions of the waste material used to infill the site. The report notes ‘When deposited, much of the fill in the ponds looked distinctly grey (see the ESRI aerial photograph of 3rd April 2015 shown in Appendix 3 Drawing No. EABAGE1711 3-5, GWP Page 47). The photographs taken on 14th December 2017 show a much browner tinge, at least to the surface material, indicating oxidation of the ferrous iron oxides (black) to ferric iron oxides (brown). Examination on site shows the fill clearly contains significant quantities of clay, silt, sand and gravel with sub-rounded cobbles (Appendix 4, Photo 4 - GWP Page 51) as would be expected from the glacial outwash sands and gravels and Alluvium shown on the BGS map. There are also a number of blocks of fairly fresh looking Raglan Mudstone (Appendix 4, Photo 6 - GWP Page 52), which would be indicative of an excavation to about 8m depth. Other materials are also present –specifically much brick and concrete rubble of various ages (Appendix 4, Photo 28 - GWP Page 63), metal scrap rebars (the steel reinforcing bars used in reinforced concrete) Appendix 4, Photo 13 -GWP Page 56) and steel plates (Appendix 4, Photo 37 - GWP Page 68), metal and plastic pipework (Appendix 4, Photo 19 - GWP Page 59), wire rope (Appendix 4, Photo 40 - GWP Page 69) as well as a junction box (with copper wire and old paint, (Appendix 4, Photo 42 - GWP Page 70), painted concrete (Appendix 4, Photo 12 - GWP Page 55) and coal (Appendix 4, Photo 34 - GWP Page 66). 53. We note that photographs from the site visit by HMRC, although not accompanied by detailed descriptions, also show debris clearly including metal. FINDINGS OF FACT 54. The following items are not entirely agreed upon by the witnesses and so we make the following findings of fact in the contested areas: 55. We find that the waste disposal was of waste that would not be ‘qualifying material’ for the purposes of the Landfill Tax (Qualifying Material) Order 2011. In making this finding we prefer the photographic and descriptive evidence in the bundle, showing and describing significant amounts of, for example, plastic and metal debris, to the evidence of Mrs Jones, who made the statement that the waste was ‘soils and stones’. Mrs Jones had not personally attended with any lorries depositing the material. 56. We find that the farmer had asked for the deposit to be made, and would have been aware of 410 lorry loads of waste driving onto the farmland to deposit the waste. In making this finding we prefer the evidence of Mrs Jones and Mr Weaver, who state that livestock were getting stuck in the ponds and hence the farmer asked JJCE (who had done work on the farm in the past) to infill the ponds, to the statement by Mr Graham that the farmer was unaware of the waste deposit. Whilst the farmer may have said that to Mr Graham, and may of course have been at the start of the deposits unaware of the nature of the deposits, we find it highly unlikely that over a period of 6 months the farmer (whether or not he had a broken leg) was completely unaware of the significant amounts of waste deposited at the farm, particularly in an area which had proved problematic to his livestock and hence would require checking by someone employed by the farm. DECISION ON GROUNDS OF APPEAL – DELIVERED ORALLY AT THE HEARING ARGUMENTS BY THE APPELLANT 57. The Appellant argued that with the exception of the 5 th ground of appeal, which was new, all the other grounds of appeal had been clearly signalled within previous grounds of appeal as a challenge to the validity of the assessment. The Appellant argued that this allowed the Tribunal to first consider whether it had been issued lawfully as a matter of course, then whether it ought to have been made under public law requirements. As such, the steps outlined in the (potentially new) grounds of appeal were ones that the Tribunal should have gone through in any case. 58. In the event that the Tribunal considered that the grounds of appeal were new, the Appellant asked for permission to admit these new grounds of appeal. The Appellant submitted that including them in the skeleton argument provided to HMRC 3 weeks in advance of the hearing was giving HMRC sufficient notice, and the arguments required no new evidence and could be dealt with in the current time allotted for the hearing. They submit that these new grounds have been submitted ‘late’ but not ‘very late’ when considering the principles set out in Quah Su-Ling v Goldman Sachs International [2015] EWHC 759. 59. The Appellants submit that there would be a severe impact on the Appellant, who has already been granted hardship in this Appeal, were the new grounds not to be granted, because this reframing and refocusing of the appeal is necessary for the appeal to continue at all. 60. The Appellant therefore submitted that the overriding objective of the Tribunal (to enable the Tribunal to deal with cases fairly and justly) would be best met by allowing the new grounds. ARGUMENTS BY HMRC 61. HMRC disagreed that the grounds of appeal now presented were contained within the original grounds. The argued that there had never been a prior objection to the validity of the assessment, nor a best judgement challenge. They further argue that the public law arguments raised were not an extension any of the original grounds (the most relevant being that removal of the waste was prevented by the presence of the Crassula, and that HMRC should not be permitted to recover Landfill Tax as it was already part of the fine). 62. HMRC submitted that they would suffer significant prejudice if the new grounds were admitted. If they had been put on notice of these with sufficient time, they would have sought to adduce further HRMC witness evidence on calculation methods, for example. As it is, that would involve either adjourning the hearing (which they do not want) or continuing without such evidence, which would be prejudicial. 63. HMRC submit that these amendments are brought very late, with no good explanation, as the same solicitor has been acting for the Appellants throughout, and that a previous vacation of the hearing was sought with the reason that specialists were being instructed at that time. DISCUSSION 64. The original grounds of appeal were: (1) That the deposit was not unauthorised given the agreement now reached with the Council and in accordance with the concession in Excise Note LFT1, therefore no taxable disposal was made; (2) Alternatively, that it would be unfair for the deposit to be considered as unauthorised as of 1 April 2018 when there was delay on behalf of the Council in reaching an agreement on removal or otherwise; (3) Alternatively, that the assessment of landfill tax made by the criminal court was final and that it would be unfair and against the principles of natural justice for HMRC to conduct a further assessment on a different basis and/or HMRC should apply the lower (inert) rate of tax in the particular circumstances of this case.” 65. These were further particularised in a 9 page letter attached with the grounds. 66. The Tribunal considers that the grounds of appeal now advanced by the Appellant as the first 3 grounds (see para 8 above) are new, because the detailed particularisation of these was not set out at all in what was a reasonably detailed particularisation of the original grounds of appeal. The fifth ground is agreed as new. We consider that the fourth ground was reasonable clearly signalled within the original grounds of appeal. 67. We allow the fourth ground of appeal as a further detailed particularisation of the original grounds. 68. For the remaining new grounds, the Tribunal therefore looks to apply the principles set out in Quah Su-Ling v Goldman Sachs International [2015] EWHC 759 to decide whether to allow the new grounds of appeal. 69. These principles are set out at para 36-38 of the judgement, as follows: Principles to be applied 36. An application to amend will be refused if it is clear that the proposed amendment has no real prospect of success. The test to be applied is the same as that for summary judgment under CPR Part 24. Thus the applicant has to have a case which is better than merely arguable. The court may reject an amendment seeking to raise a version of the facts of the case which is inherently implausible, self-contradictory or is not supported by contemporaneous documentation. 37 [] 38. Drawing these authorities together, the relevant principles can be stated simply as follows: a) whether to allow an amendment is a matter for the discretion of the court. In exercising that discretion, the overriding objective is of the greatest importance. Applications always involve the court striking a balance between injustice to the applicant if the amendment is refused, and injustice to the opposing party and other litigants in general, if the amendment is permitted; b) where a very late application to amend is made the correct approach is not that the amendments ought, in general, to be allowed so that the real dispute between the parties can be adjudicated upon. Rather, a heavy burden lies on a party seeking a very late amendment to show the strength of the new case and why justice to him, his opponent and other court users requires him to be able to pursue it. The risk to a trial date may mean that the lateness of the application to amend will of itself cause the balance to be loaded heavily against the grant of permission; c) a very late amendment is one made when the trial date has been fixed and where permitting the amendments would cause the trial date to be lost. Parties and the court have a legitimate expectation that trial fixtures will be kept; d) lateness is not an absolute, but a relative concept. It depends on a review of the nature of the proposed amendment, the quality of the explanation for its timing, and a fair appreciation of the consequences in terms of work wasted and consequential work to be done; e) gone are the days when it was sufficient for the amending party to argue that no prejudice had been suffered, save as to costs. In the modern era it is more readily recognised that the payment of costs may not be adequate compensation; f) it is incumbent on a party seeking the indulgence of the court to be allowed to raise a late claim to provide a good explanation for the delay; g) a much stricter view is taken nowadays of non-compliance with the Civil Procedure Rules and directions of the Court. The achievement of justice means something different now. Parties can no longer expect indulgence if they fail to comply with their procedural obligations because those obligations not only serve the purpose of ensuring that they conduct the litigation proportionately in order to ensure their own costs are kept within proportionate bounds but also the wider public interest of ensuring that other litigants can obtain justice efficiently and proportionately, and that the courts enable them to do so. In relation to considering these principles against the new grounds, we have taken into 70. account the following factors. 71. We consider that ground 5, whilst new, is not significantly prejudicial to HMRC as it requires very similar matters to be addressed to ground 4, and that these matters are the facts of the case that have been known from the outset. We consider that it would prejudice the Appellant if it were not raised, and that it has some prospect of success. We allow this new ground of appeal, notwithstanding that it is made ‘very late’ because we consider that this matter can be addressed within the current hearing. 72. In relation to grounds 1-3, we consider that the application is ‘very late’. We consider it is not possible for HMRC to fully address these new grounds of appeal without asking for an adjournment, and therefore we consider that this is one where ‘the trial date would be lost’. The Tribunal would require further witness statements from various HMRC officers, who may need to be cross examined, and this is clearly not possible on the day of the hearing, nor would it have been possible even had this been considered at the date that the skeleton argument was submitted. 73. We consider that no adequate explanation has been given for the delay. 74. We consider that the prospects of success, and the prejudice to the Appellant, are not so overwhelming as to overcome the high hurdle for the admission of new grounds which are so prejudicial to HMRC. 75. We therefore refused permission to admit grounds 1-3. 76. The grounds of appeal we therefore heard in full were: (1) Whether due to the inability, inadvisability or impracticality of moving the waste, the Appellant had a reasonable excuse for the waste remaining in situ by 1 April 2018 and thereby being deemed to have made a deposit on that date. (2) Whether the circumstances were such that it would not be in the interests of justice to charge interest at the prescribed rate or at all even if not amounting to a reasonable excuse. THE LAW 77. The charge to tax is made under the Landfill Tax provisions in Finance Act 1996. 78. There is no dispute that there is a disposal of material. 41 Liability to pay tax. ... (3) A person is liable to pay tax charged on a taxable disposal not made at a landfill site if the person— (a) makes the disposal, or (b) knowingly causes or knowingly permits the disposal to be made. (4) Every such person is jointly and severally liable to pay the tax charged. (5) In the case of a taxable disposal not made at a landfill site, a person within subsection (6) or (7) is taken for the purposes of this Part to be a person who knowingly causes or knowingly permits the disposal to be made, unless it is shown to the satisfaction of the Commissioners that the person did not do so. (6) A person is within this subsection if, before the time of the disposal of the material in question, the person— (a) took any action with a view to the disposal of the material, (b) was party to a contract for the sale of the material, or (c) facilitated the transport or storage of the material. (7) A person is within this subsection if at the time of the disposal the person— (a) is the owner, or a lessee or occupier, of the land at which the disposal is made, (b) controls, or is able to control, a vehicle or trailer from which the disposal is made, 50A Power to assess: unregistered persons (1) Where— (a) it appears to the Commissioners that a person is liable to pay tax on a taxable disposal, and (b) the person is not a registered person, the Commissioners may assess the amount of tax due from the person to the best of their judgment and notify it to the person. (2) An assessment under this section must be accompanied by a notice— (a) identifying the land where the disposal was made; (b) indicating the date on which the disposal was made or treated as made, or the date on which (or period within which) the Commissioners believe it was made; (c) explaining why the Commissioners believe that the person to whom the notification is sent is liable to pay tax on the disposal; (d) describing the methods used to calculate the amount of tax, including the method used by the Commissioners to determine the weight of the material disposed of; (e) containing any other information prescribed by regulations. (3) An assessment under this section is not invalidated by any inaccuracy in the information given in the notice under subsection (2). 54Appeals (1) Subject to section 55, an appeal shall lie to an appeal tribunal from any person who is or will be affected by any of the following decisions— (d)a decision as to an assessment falling within subsection (2) below or as to the amount of such an assessment; ... (o)a decision as to the amount of any penalty or interest specified in an assessment under paragraph 32 of that Schedule. (2)An assessment falls within this subsection if it is— (a)an assessment under section 50 above in respect of an accounting period in relation to which a return required to be made by virtue of regulations under section 49 above has been made , or (b)an assessment under section 50A. Schedule 5, Finance Act 1996 28(1)Where a person is liable to pay interest under paragraph 27 above the Commissioners or, on appeal, an appeal tribunal may reduce the amount payable to such amount (including nil) as they think proper. (2)Where the person concerned satisfies the Commissioners or, on appeal, an appeal tribunal that there is a reasonable excuse for the conduct giving rise to the liability to pay interest, that is a factor which (among other things) may be taken into account under sub-paragraph (1) above. (3)In the case of interest reduced by the Commissioners under sub-paragraph (1) above an appeal tribunal, on an appeal relating to the interest, may cancel the whole or any part of the reduction made by the Commissioners. DISCUSSION 79. The case law relevant to the decision has been quoted below in relation to each relevant part of the decision, rather than the law section above, to make it clearer which part of the case law is relevant to which part of the decision. 80. Considering first the matter of the tax, rather than the interest, the matter for decision is ‘Whether due to the inability, inadvisability or impracticality of moving the waste, the Appellant had a reasonable excuse for the waste remaining in situ by 1 April 2018 and thereby being deemed to have made a deposit on that date.’ 81. We will break this down into a number of parts. In each part it will be important to consider whether the Tribunal has jurisdiction in this area as the matter is not straightforward. 82. The first part is whether the decision by the officer was a reasonable decision. In looking at this one of the arguments by the Appellant is that the language of the legislation is ‘the Commissioners may assess’ (emphasis added). The Appellant argues that HMRC (specifically, Mr Graham) did not appear to consider that they had any discretion in this matter, and as they did not exercise discretion, this led to an unreasonable decision. 83. What jurisdiction does the Tribunal have in this area? 84. The Landfill Tax legislation does not set out exactly the matters that the Tribunal has the power to consider. Therefore we turn to general principles, which derive from case law principally concerned with VAT appeals. 85. We consider it uncontroversial that the Tribunal has the power to consider whether the decision(s) made by HMRC are reasonable, in cases such as this, where the power to appeal to the Tribunal includes the appeal ‘a decision as to as to an assessment...’. 86. HMRC submit that because we ruled out new ground 2 ‘Whether the assessment made was unlawful as there was no exercise of HMRC’s discretion not to assess, or at least that it was unreasonable having failed to take into account or give sufficient weight to reasons why the Appellant had not removed the waste by 1 April 2018 in order to avoid liability.’ then the Tribunal should not consider the discretion that HMRC may or may not have used. 87. We disagree. We consider that the ruling out of that ground simply ruled out any finding that if HMRC had not exercised discretion, the decision was automatically unlawful. It still leaves open the decision as to what should be involved in the decision, and whether the decision itself was reasonable. 88. We draw here upon the decision in John Dee v Customs and Excise Commissioners [1995] STC 941 (1) where Lord Justice Neill wrote: It is clear from section 40 [the relevant VAT provision in relation to this decision] itself that the decisions from which an appeal may lie cover a wide field. It is also clear that, though the construction of the 1983 Act cannot be determined by the subordinate legislation, the 1986 Rules show that the Tribunal can, inter alia, hear evidence and make orders relating to discovery. It is true that there is no express provision in schedule 8 to the 1983 Act or elsewhere in the 1983 Act governing the powers of a VAT Tribunal on an appeal under section 40 . I am, however, unable to accept Mr. Engelhart's general proposition that, in the absence of any express limitation, the powers of a Tribunal are akin to those of the Court of Appeal. In my judgment it is necessary in each case to examine the nature of the decision against which the appeal is brought. It is also necessary to take account of the fact that, by virtue of paragraph 1(1) of schedule 7 to the 1983 Act, Value Added Tax is under the care and management of the Commissioners. In furtherance of his argument that, once the tribunal had decided that the decision of the Commissioners was flawed, it could substitute its own discretion, counsel for the company was constrained to submit that it was for the Tribunal to decide whether it appeared to it “requisite for the protection of the revenue” to require a taxable person to give security. I am quite unable to accept this submission. It seems to me that the “statutory condition” (as Mr. Richards termed it) which the Tribunal has to examine in an appeal under s.40(1)(n) is whether it appeared to the Commissioners requisite to require security. In examining whether that statutory condition is satisfied the Tribunal will, to adopt the language of Lord Lane, consider whether the Commissioners had acted in a way in which no reasonable panel of Commissioners could have acted or whether they had taken into account some irrelevant matter or had disregarded something to which they should have given weight. The Tribunal may also have to consider whether the Commissioners have erred on a point of law. I am quite satisfied, however, that the Tribunal cannot exercise a fresh discretion on the lines indicated by Lord Diplock in Hadmor . The protection of the revenue is not a responsibility of the Tribunal or of a court. 89. The decision as to whether any decision is reasonable, will include whether discretion was possible, and if it was, whether it was used, and used reasonably. 90. Here the decision is whether to assess the tax. No arguments (within the allowed Grounds of Appeal) were put to us that the amount assessed was flawed, and so we do not address that. 91. We agree the legislation ‘the Commissioners may assess’ does give HMRC discretion in this area. This has been helpfully discussed in the case of Scofield v HMRC [2011] UKFTT 199 (TC). 28. Section 66 (1) uses the word "may". A quick glance at Stroud's Judicial Dictionary of Words and Phrases or Halsbury’s Laws of England will disclose many authorities which discuss whether "may" is permissive or whether it imposes an obligation. We hope it is not disrespectful to the learning displayed in these cases if we summarise them as follows. The word "may" is usually permissive, conferring a power and a discretion and not imposing an obligation. However, the statutory context or the legislative history of the provision in question can, exceptionally, mean that the word "may" is mandatory -- in other words it imposes a duty upon the authority in question to take the specified action. 92. We consider that here, the ordinary an natural meaning of the word ‘may’ in this context, together with the fact that elsewhere (many times) in the same Act the word ‘must’ is used (see para 42 ‘The Treasury must..’) means that this word in this act is permissive not mandatory. 93. We therefore first must decide whether HMRC did use any discretion. The case put forward by the Appellant is that it did not. They point to the evidence of Mr Graham, who, as mentioned above, was asked in oral evidence whether, once he had decided that the Appellant met the criteria to be assessed on the tax, whether he had considered whether or not the Appellant should be assessed. Mr Graham replied ‘I decided the assessment should apply to the Appellant.’ He confirmed the fact that the Appellant was not able to remove the waste was always a consideration throughout the entire case, but that it was ‘not my authority to waive someone’s tax’.’ And ‘not in my power not to assess a tax that is liable’. 94. Mr Graham’s written witness statement says ‘The waste disposed of at Bage Farm, however, was unauthorised as the correct exemption or permit was not in place to permit the disposal. 410 loads of waste were disposed of at Bage Farm. The waste was deposited between 7 July 2014 and 15 November 2014. None of the waste had subsequently been removed since the disposals had taken place. The waste was on the site on 1 April 2018, therefore, this is the relevant date for the tax to be applied. I accepted that the loads were 15 tonnes each and not the standard 20 tonnes. The tax is chargeable by weight and only the standard rate applies to unauthorised waste. This amount is £88.95 per tonne for this period. 410 loads at 15 tonnes equals 6150 tonnes. The total tax calculated was £547,042.50. 95. We find, based on Mr Graham’s written and oral evidence, that he was not aware that he had discretion over whether or not to issue an assessment. We therefore find that he did not use any discretion when inputting into the decision to charge the tax. 96. However, we note that neither the legislation, nor the assessment itself, refers to a decision that needs to be taken solely by Mr Graham. The legislation refers to ‘the Commissioners’, and the assessment and the accompanying letter refer to ‘our decision’ and ‘HMRC’s view’. We therefore consider it relevant to decide whether the assessment was issued solely on the basis of a decision by Mr Graham, or not. 97. Mr Graham did refer to himself as ‘the decision maker in the case’ but he also said that as this was one of the first assessments to be made under the legislation that allowed Landfill Tax to be charged on disposals at unauthorised sites, this decision was discussed and reviewed by HMRC’s ‘Tax Assurance Committee’ which is chaired by the CEO of HMRC, and in addition it was considered by Mr Graham’s wider team, the policy team and the Individual and Small Business Compliance board. 98. Mr Graham confirmed that all the facts of the case, including the Crassula and the problems it meant for the remediation of the site, were known by the people discussing the case. 99. We consider that the fact that this case was reviewed by HMRC’s ‘Tax Assurance Committee’ and the fact that it did so because this was one of the first cases to be brought under this legislation, is evidence of HMRC using discretion in the decision making in relation to this case. It is also clear to us that the decision made by HMRC was not made by Mr Graham alone. 100. We therefore consider that HMRC did use discretion in this case. 101. We therefore turn next to whether the decision, including the discretion, was reasonable. 102. Within the permitted grounds of appeal, the Appellant does not dispute the rate of tax or the calculation of the tax. For the avoidance of doubt it is clear that the rate of tax is correct. This is given by s42 (1) (a) FA 1996. There is a reduction applicable if both the disposal was made at a landfill site, and the material was ‘qualifying’ material, but since the disposal was not made at a landfill site that does not apply. 103. We note that Mrs Jones, in her oral evidence, made reference to the fact that the calculation of the weight may not be entirely correct. We consider the method used by Mr Graham to calculate this to be reasonable, and the tonnage that this gives is within the estimate range given by the external reports in the criminal case. We also note that Mrs Jones did not put forward any alternative tonnage with reasoning or evidence nor a methodology for any alternative. 104. We note that apart from the matter of whether or not discretion was used, no other challenges to the reasonableness of the decision were made by the Mr Thornton. No unreasonable omissions or inclusions relating to the decision making process were apparent to us from the evidence provided. 105. We therefore conclude that, within the factors that the Tribunal has jurisdiction to consider within its appellate function, the decision was not unreasonable. 106. We turn next to matters of public law advanced by Mr Thornton. 107. Mr Thornton submits that, separately to the arguments on discretion above, the decision by HMRC was unlawful as a matter of public law. 108. We therefore next turn to the jurisdiction of the Tribunal to consider such an argument. 109. The Appellant pointed to the case of KSM Henryk Zeman SP zoo v HMRC [2021] UKUT 182 (TCC), in which it was decided that the FTT, whilst not having a general supervisory jurisdiction, can consider arguments in favour of the taxpayer made by challenging the decision on public law grounds. 110. Zeman concludes, after a detailed analysis of relevant case law and the specific legislation 84 Coming back then to where we started our analysis, the critical question in this case (see Beadle at [44]) is whether the relevant statutory scheme expressly or by implication excludes the ability to raise a public law defence of legitimate expectation (again, see Beadle at [44]). For all the reasons given above, we do not consider that s 83(1)(p) does exclude that ability. On the contrary, on the facts of this case and given the broad subject-matter of s 83(1)(p), we see strong reasons for thinking that it would be artificial and unworkable to exclude a defence based on the public law principle of legitimate expectation from the tribunal’s appellate jurisdiction. We therefore consider that the FTT did have jurisdiction to determine that question in this case. 111. This case considers a provision in VATA 1994, s83 (1) (p) which gives the right of appeal to the Tribunal in respect of: ‘(p) an assessment—(i) under section 73(1) or (2) in respect of a period for which the appellant has made a return under this Act; or (ii) under [subsections (7), (7A) or (7B)] of that section 112. S73(1) VATA 1994 states Where a person has failed to make any returns required under this Act (or under any provision repealed by this Act) or to keep any documents and afford the facilities necessary to verify such returns or where it appears to the Commissioners that such returns are incomplete or incorrect, they may assess the amount of VAT due from him to the best of their judgment and him.’ notify to it 113. It is therefore analogous to the legislation in this case, where a ‘may assess’ decision may be appealed to this Tribunal. 114. However, the decision in Zeman was made after, but with no reference to, the decision in the Court of Appeal in Metropolitan International Schools Ltd v HMRC [2019] EWCA Civ 156 which states: Secondly, the School's interpretation of section 84(10) of the VATA would appear to imply that public law arguments could routinely be advanced in appeals to the FTT. That would clearly be the case where HMRC had rejected a legitimate expectation claim in advance of the decision under appeal, but other public law arguments could presumably also be put forward. Where, say, it had been suggested to HMRC that it should take a particular matter into account, and HMRC had announced before making an assessment that it did not consider it appropriate to do so, it could be suggested that the assessment depended on a prior decision that could be impugned on public law grounds. That would be a very surprising result. In Revenue and Customs Commissioners v Noor [2013] UKUT 71 (TCC) , the UT (Warren J and Judge Bishopp) held, departing from views expressed by Sales J in Oxfam v Revenue and Customs Commissioners 2009 EWHC 2078(Ch) that "the right of appeal given by s 83(1) [of the VATA] is an appeal in respect of a person's right to credit for input tax under the VAT legislation" and that the FTT did "not have jurisdiction to give effect to any legitimate expectation which [the taxpayer] may be able to establish in relation to any credit for input tax" (paragraph 87). The UT observed: "a person may claim a right based on legitimate expectation which goes behind his entitlement ascertained in accordance with the VAT legislation (in that sense); in such a case, the legitimate expectation is a matter for remedy by judicial review in the Administrative Court; the FTT has no jurisdiction to determine the disputed issue in the context of an appeal under s 83" (paragraph 87). In the UT's view, a number of features "point strongly to the conclusion that Parliament did not intend to confer a judicial review function on the VAT Tribunal or the FTT in relation to appeals under s 83 of the VATA 1994" (paragraph 78). The UT noted that the Tribunals, Courts and Enforcement Act 2007 conferred a judicial review function on the UT but not the FTT (paragraph 29) and that the approach Sales J had favoured would have conferred a very extensive judicial review jurisdiction on the FTT "without any of the procedural safeguards, in particular the filter of permission to bring judicial review, and time-limits to which ordinary applications for judicial review in the Administrative Court are subject" (paragraph 76). The UT also cited this passage from the judgment of Nicholls LJ in an income tax case, Aspin v Estill [1987] STC 723 (at 727): "The taxpayer is saying that an assessment ought not to have been made. But in saying that, he is not, under this head of complaint, saying that in this case there do not exist in relation to him all the facts which are prescribed by the legislation as facts which give rise to a liability to tax. What he is saying is that, because of some further facts, it would be oppressive to enforce that liability. In my view that is a matter in respect of which, if the facts are as alleged by the taxpayer, the remedy provided is by way of judicial review." Mr Ramsden did not attempt to persuade us that the UT was wrong in Noor. Were, however, his contentions as to the ambit of section 84(10) of the VATA well-founded, it would seem that the FTT had, after all, a wide jurisdiction to rule on public law issues and, in particular, legitimate expectation claims. The jurisdiction would, moreover, have been conferred through a provision introduced in response to the Corbitt decision (viz. section 84(10)) ("by the back door", as Miss Mitrophanous would say), rather than under section 83, the main appeals section. Further, legitimate expectation (and, seemingly, other public law) arguments could be raised in the FTT without any need to satisfy the requirements as to obtaining permission and time limits that govern applications for judicial review (see CPR 54.4 and 54.5). It is highly improbable that Parliament intended this when it enacted what has now become section 84(10). In my view, the UT was right that section 84(10) of the VATA is of relatively limited scope. For section 84(10) to apply, the decision under appeal must have "depended upon a prior decision". The provision thus requires both a "prior decision" and that the appealed decision "depended" on it. The need for a "prior decision" implies, I think, that section 84(10) cannot be invoked to challenge something that amounted to no more than a factor in the subject of the appeal, not a distinct "prior decision". The subsection would not, therefore, be in point merely because, for instance, HMRC had chosen to take a particular matter into account in making the decision under appeal, even if they had resolved on their attitude to the matter in question in advance of the appealed decision. Any challenge to what HMRC had done would have to be mounted under section 83, as part of the appeal against the (final) decision, or perhaps by way of judicial review, not under section 84(10). Turning to the significance of the word "depended", the UT considered that it "connotes a decision A which has to be taken before decision B both as a matter of fact and as a matter of legal necessity or requirement". This formulation seems to me to capture the sense of section 84(10) of the VATA. In the context, "depended" signifies that decision B (i.e. that under appeal) could not have been taken but for decision A. Parliament had in mind a "prior decision" comparable to the "necessary legal precursor" in Corbitt. In the context of an appeal against "the VAT chargeable on the supply of any goods or services" (section 83(1)(b) of the VATA) or an assessment (section 83(1)(p)), I find it hard to see how the decision under appeal could have "depended" on any prior decision in the relevant sense unless the latter decision dictated whether or not there was legal liability. A decision as to whether, for example, it was "oppressive to enforce that liability" (to quote from the judgment of Nicholls LJ in Aspin v Estill) would, it seems to me, appropriately be the subject of judicial review proceedings rather than an appeal to the FTT. In the circumstances, the UT arrived, in my view, at the correct conclusion. Section 84(10) of the VATA is inapplicable both because HMRC's view on whether the School should be granted a transitional period amounted to no more than a factor in their decision to assess and because the assessments could have been raised without HMRC reaching any decision on any legitimate expectation contention. The legitimate expectation point did not bear on whether there was "VAT chargeable" or a liability to assess and, in the words of the UT, "HMRC had to deal with it first because it was raised in negotiation by the taxpayer, but it did not otherwise have to". If the School wishes to pursue its legitimate expectation argument, it must seek to do so in its judicial review claim, not in the context of these proceedings. 115. Whilst Metropolitan Schools dealt with legitimate expectation arguments, we consider that it contains a very strong guidance on the generality of the advancement of public law arguments in the FTT. It is also following the line of reasoning used in the Upper Tribunal cases of HMRC v Hok [2013] STC 225 (“Hok”), and HMRC v Noor [2013] STC 998 (“Noor”). In both cases the UT concluded that no general supervisory jurisdiction had been conferred on the FTT. 116. Zeman agrees (with the judgements in Hok and Noor) that no supervisory jurisdiction has been conferred, but concludes that nevertheless public law arguments may be raised by the taxpayer in challenging (some) HMRC decisions. 117. We prefer the analysis of Metropolitan Schools and note that this relates to public law arguments before the FTT generally as well as in legitimate expectation cases. 118. The therefore reject the premise that we have the jurisdiction to consider wider public law circumstances in this matter. 119. However, in case we are wrong on this point, and because we heard fully the HMRC arguments both assuming there was a jurisdiction to hear these points, and that there was not, we do go on to consider, if the FTT did have jurisdiction to consider wider public law points, what our conclusion on those would be. 120. The argument put forward by the Appellant is that one public body (HMRC) was in effect saying ‘remove this waste or we will charge you tax’ and another public body was saying ‘do not move any deposit containing Crassula or you will be committing a criminal offence’. They say that this puts the Appellant in a ‘conspicuously unfair’ position, as there was nothing it could do to avoid being penalised by a public body. 121. Conspicuously unfair comes with a very high hurdle. Lord Justice Simon Brown, in R v Inland Revenue Commissioners, ex parte Unilever plc and related application [1996] STC 681, says: Any unfairness challenge must inevitably turn on its own individual facts. True, as Lord Templeman made clear in Preston , it can only ever succeed in "exceptional circumstances". True, too, the court must always guard against straying into the field of public administration and substituting its own view for that of the administrator. In these circumstances I am very ready to accept that rare indeed will be the case when a fairness challenge will succeed outside the MFK [legitimate expectation] parameters. It is certainly difficult to envisage many situations when, absent breach of a clear representation, a highly reputable and responsible body such as the Revenue will properly be stigmatised as having acted so unfairly as to have abused their powers - here their power to accept late claims. But I am satisfied that there exists no legal inhibition to such a conclusion. The great question is whether it is the appropriate conclusion here and to that I now turn. To assess this, we first look at the alternatives available to the Appellant were the land 122. not to have the Crassula on it. 123. We accept the evidence of Mrs Jones that JJCE offered, and was prepared to, remediate the situation and would have removed the waste from the site if asked and allowed to do so. 124. That waste would then have been taken to a landfill site. 125. However, we reject the evidence of Mrs Jones that the cost of doing so would have been the cost of digging and removing by JJCE (which they estimated at £6,000) and then the payment of landfill tax at the lower rate (that for ‘inert’ waste, which has been used in various pieces of evidence as synonymous for ‘qualifying’ waste). 126. We find, based on the evidence of the photos and the detailed descriptions in the report by Mr Baker, and the photographs taken by HMRC at their site visit, that the visible portions of the waste were not ‘inert’ but contained sizeable amounts of metal, plastic and other materials and therefore would have been liable for landfill tax at the higher rate (which is the amount of tax that HMRC have assessed here). 127. Alternatively, JJCE could have chosen to process the waste further, removing ‘non qualifying’ waste. This would have cost them further amounts to process the waste, and at the end of the processing they would have been left with some qualifying and some non- qualifying waste. 128. We therefore find that without the presence of the Crassula, the route that JJCE say that they would have taken would have led them to pay a considerable amount of landfill tax and/or further costs of processing. 129. We make no finding as to the actual amount, as that would depend on the specific directions made by the relevant authorities agreeing the remediation, but we do note that no landfill site would have given the Appellant credit for the amount of landfill tax already calculated as part of the fine in the criminal case. 130. Given that we find that whichever route the Appellant took (removing the waste or leaving it in situ) landfill tax would be due, we do not consider it ‘conspicuously unfair’ that HMRC has chosen to assess the tax due in this case. 131. We next turn to the decision by HMRC to charge interest. 132. The relevant legislation here states: Schedule 5, Finance Act 1996 28(1)Where a person is liable to pay interest under paragraph 27 above the Commissioners or, on appeal, an appeal tribunal may reduce the amount payable to such amount (including nil) as they think proper. (2)Where the person concerned satisfies the Commissioners or, on appeal, an appeal tribunal that there is a reasonable excuse for the conduct giving rise to the liability to pay interest, that is a factor which (among other things) may be taken into account under sub-paragraph (1) above. (3)In the case of interest reduced by the Commissioners under sub-paragraph (1) above an appeal tribunal, on an appeal relating to the interest, may cancel the whole or any part of the reduction made by the Commissioners. 133. We are therefore considering whether there is a reasonable excuse for ‘the conduct giving rise to the liability to pay interest’ or whether, looking at the facts in the round, we consider it proper to reduce the interest due. 134. HMRC argue that the ‘conduct giving rise to the liability to pay interest’ is the original disposal of the waste and as such, the Tribunal should consider that no reasonable excuse exists. 135. The Appellant, whilst acknowledging that they were at fault for the original disposal, argues that the relevant conduct is the failure to remove the waste before the deemed disposal date of 1 April 2018, and their reasonable excuse is the presence of the Crassula and the lack of help from the relevant authorities to help them resolve the matter. 136. The assessment was made by HMRC on 23 October 2020 with a due date of 21 November 2020 and therefore interest runs from the due date. We consider that the main conduct giving rise to the liability to pay interest is the failure to pay the landfill tax assessment at the due date. We understand that the Appellant has been granted hardship in order to bring this appeal without payment of the tax due. The primary cause of the conduct giving rise to the liability to pay interest is the lack of funds on the part of the Appellant. 137. We consider that the original disposal is one of the matters that we take into consideration, in addition to the presence of the Crassula and the attempts to mitigate the original disposal in various ways. 138. However, having set out above our reasons why we do not consider the presence of the Crassula and the problems that therefore were present when attempting the mitigation of the effects of the original disposal gives rise to conspicuous unfairness, we similarly consider that, having considered all the matters in the round, we do not consider that the interest due should be reduced. 139. Accordingly, for the reasons above, we dismiss this appeal. RIGHT TO APPLY FOR PERMISSION TO APPEAL 140. This document contains full findings of fact and reasons for the decision. Any party dissatisfied with this decision has a right to apply for permission to appeal against it pursuant to Rule 39 of the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009. The application must be received by this Tribunal not later than 56 days after this decision is sent to that party. The parties are referred to “Guidance to accompany a Decision from the First- tier Tribunal (Tax Chamber)” which accompanies and forms part of this decision notice. Release date: 31st JULY 2025 20