SLfT3001 - Determining whether tax is payable

Introduction

This chapter of guidance will help you determine whether or not SLfT applies to certain activities, including whether those activities do or do not constitute a taxable disposal (see SLfT1002).

SLfT3002 - Landfill site activities prescribed as being subject to tax

This guidance takes effect from 5pm on 1 July 2022 reflecting the coming into force of The Scottish Landfill Tax (Prescribed Landfill Site Activities) Amendment Order 2022.

In addition to the taxable disposals covered in SLfT1002, SLfT also applies to certain activities relating to the use of materials on a landfill site. These activities are set out in The Scottish Landfill Tax (Prescribed Landfill Site Activities) Order 2014 (as amended by the Scottish Landfill Tax (Prescribed Landfill Site Activities) (Amendment) Order 2022) and are referred to as ‘prescribed activities’.

Within the landfill cell

A landfill cell is where the disposal activities take place on a landfill site. It is formed of an impermeable layer at its base, sides and, save where the cell only contains inert material, at the top of the cell.

The impermeable layer means the geological barrier at the external facing perimeter of a landfill cell that has the function of preventing the escape of liquids or gases from that landfill cell. This layer can be formed of a single mineral layer or a mineral layer combined with an artificial sealing liner or cap. The impermeable layer itself forms the perimeter of the cell and is therefore is not material used in the cell.

Article 3(1) of the 2014 Order (as amended by the Scottish Landfill Tax (Prescribed Landfill Site Activities) (Amendment) Order 2022) lists the prescribed activities which are to be treated as disposals.  Under article 3(1)(h), the use of any material in a landfill cell is to be treated as a disposal (subject to a number of exceptions provided for in the Order and listed below) and therefore liable to SLfT.

Exceptions

Article 3(1)(h) of the 2014 Order (as amended by the Scottish Landfill Tax (Prescribed Landfill Site Activities) (Amendment) Order 2022)  also lists the circumstances where material used within a landfill cell is not taxable. These are:

• the use of material to form the drainage layer immediately above the base of the cell
• the pipes, pumps or associated infrastructure used for the extraction or control of surplus liquid or gas from or within that cell 
• plant or equipment for waste or environmental management purposes

The use of material that meets all the conditions of one of the SLfT exemptions (see SLfT3005) are also not taxable.

A number of prescribed activities set out in the 2014 Order could take place within the cell. They are therefore taxable either under article 3(1)(h) or under the separate provisions (see the table below for further details on these prescribed activities):

• Daily cover, the use of material to cover the cell during a short-term cessation in landfill disposal activity (article 3(1)(a))
• The use of material to create or maintain a temporary haul road in the cell (article 3(1)(b))
• The use of material to create or maintain temporary hard standing in the cell (article 3(1)(c))
• Cell bunds or cell walls, material used to build structures to separate or contain waste (article 3(1)(d))
• The use of material to create or maintain a temporary screening bund (article 3(1)(e))
• The temporary storage of ashes (including pulverised fuel ash and furnace bottom ash) in the cell (article 3(1)(f))
• Material placed against the drainage layer or liner of the cell to prevent damage to that layer or liner (article 3(1)(g))

Other prescribed activities

When the prescribed activities within the Order take place, whether inside or outside the landfill cell, they are taxable. Descriptions of the other prescribed activities are set out in column 2 of the following table. Column 3 provides further detail about what activities are taxable and column 4 sets out related activities that are not taxable.

While no tax is due on waste which is subject to processing or sorting in the non-disposal area of a landfill site prior to the waste being subject to recovery, tax will be due if the site operator does not supply us with the information described in the guidance on requirements for non-disposals (see SLfT3011).

For activities A to E and G, tax is due regardless of whether the material was bought for the purpose or was otherwise obtained.

If material is used for the above activities and has previously been the subject of a taxable disposal, tax is due only on the material that has not been taxed. For example, of material used to cover waste, if 40% of the material has been taxed before and 60% is new material, tax is only due on the 60%.

This is not the case if the tax on a disposal has already been paid by another operator and the disposal was then subsequently moved. In this case, the tax would be payable again.

Where material is taxable because it has been subjected to a landfill site activity which is temporary (activities A, B and D in the table above) and that material is subsequently put to a non-taxable use (but not on a landfill site except when reusing it as restoration material), credit may apply (see SLfT6010).

LT(S)A 2014 section 6

LT(S)A 2014 section 12

LT(S)A 2014 section 31

SLfT3003 - Restoration

Landfill Restoration is not taxable providing it is in accordance with an agreed restoration plan and certain other conditions are met.

Restoration is any work that the planning consent, permit or authorisation requires to be carried out after waste disposal operations cease. The purpose of the works is to restore the site or a part of the site to a condition suitable for non-landfill use.

Restoration is not taxable providing it is carried out in accordance with an agreed restoration plan and it consists of no more material than is reasonably required to achieve the restoration purpose.

Restoration plans are required by environmental and planning legislation. Any waste deposited contrary to the agreed restoration plan (such as different waste type, amount or location) is unauthorised in terms of complying with the restoration plan and is therefore likely to be taxable.

The deposit of waste on a landfill site for the purposes of restoration will not be taxable providing:

• you notify us of the intention to commence restoration of the whole or a part of the site and provide the required information (see SLfT3004);
• the restoration work takes place after notification has been given and the information has been provided;
• the material is deposited on an area of the site which has been notified as being restored and is used in that area for restoration; and
• no more than the agreed volume/tonnage and waste type of waste is used in the restoration. Any waste used more than agreed, or of a different waste type, is likely to be taxable.

LT(S)A 2014 section 31

SLfT3004 - Notification about restoration

SLfT guidance on how to notify Revenue Scotland in advance about proposed restoration activity.

Before starting any restoration, once you are registered with us you must notify us of your intention to commence restoration. Any restoration works carried out before we receive your notification may be taxable.

Restoration Areas

You must inform us if you intend to commence restoration works. Further guidance on how to notify us about new full or partial site restoration can be found at Restoration

What happens once you have notified us

We will acknowledge your notification, but this will not imply acceptance that the material is not taxable. You are responsible for deciding whether any particular deposit of material qualifies as not being taxable and you must retain such evidence as is necessary to satisfy us that it was not taxable.

For new site restoration notifications only, a copy of the restoration plan agreed by SEPA (as part of the site’s environmental requirements) must be included in your restoration notification. Unless already contained in the agreed restoration plan, the following information must also be provided:

• your SLfT registration number
   
• your registered name and address and the name, address and permit/authorisation number of the landfill site to which the notification relates (separate notifications for each site)
   
• whether the notification is for full or part restoration of the site
   
• evidence to demonstrate that you are required to restore this landfill site, such as a copy of the planning consent specifying the requirement to restore
   
• a scaled drawing or plan of the area(s) under restoration
   
• cross section drawings specifying maximum depths of restoration material to be applied
   
• an estimate of the total tonnage of material needed to restore the area(s) included in your notification. You should deduct from this total any material on site that you have retained for this restoration and provide full details of how you have calculated the weight of the total of site restoration material. This applies to any non-temporary restoration of a site;
   
• evidence to demonstrate why you require the notified tonnage. Such evidence could include:
  • a permit/authorisation management plan;
  • a plan of the area subject to this notification; and
  • correspondence with the environmental regulator, and extracts from any tender/restoration contract;
     
• the date you expect to commence restoration (notification should not be made more than six months prior to commencement) and
   
• an estimate of the timescale of this restoration project.

LT(S)A 2014 section 31

SLfT3005 - Exemptions

Overview of SLfT guidance on activities or areas which, subject in some cases to certain conditions, are not taxable disposals and are exempt from SLfT.

The following links provide guidance on activities or areas which, subject in some cases to certain conditions, are not taxable disposals and are therefore exempt from SLfT.

• Dredgings – material removed from water – SLfT3006
• Mining and quarrying waste – SLfT3007
• Pet cemeteries – SLfT3008
• Filling of quarries – SLfT3009
• Exemption Certificates – clearing up unauthorised disposals – SLfT3010

SLfT3006 - Dredgings – material removed from water

SLfT guidance on the circumstances in which natural or artificial materials removed by dredging may be exempt from SLfT.

Natural or artificial materials removed from a river, canal or watercourse or from a dock or harbour by dredging in one of the circumstances listed below, and then disposed of to landfill as waste, are exempt from SLfT.

The circumstances under which dredging material qualifies for the exemption are where:

• material is removed by dredging or otherwise and later disposed of to landfill, and that material formed part of the bed of the water or projected from the bed prior to removal (including the banks) and has been dredged from:
  • a river, canal, watercourse (see below), dock or harbour (whether natural or artificial); or
  • the approaches to a harbour and removed in the interests of navigation.

To qualify as a watercourse it must be possible to show that a body of water has a:

• natural source of surface or underground water;
• flow, under the action of gravity;
• reasonably well-defined channel of bed and banks; and
• meeting point with another watercourse or tidal waters;

or

• naturally occurring material is extracted from the seabed as part of a commercial operation to obtain substances such as sand and gravel. Any naturally occurring substances which result from this operation that are then disposed of to landfill will qualify for the exemption.

The exemption only applies to the disposals of waste where we are satisfied that:

• only material removed from the bed of the water (including the banks) is deposited; and
• other material has been added to it in order to ensure that it is no longer liquid waste.

Liquid waste is:

• any waste that immediately flows into a space made in its surface; or
• any waste load containing more than 250 litres of free-draining liquid or 10% of the load volume, whichever is the lesser amount. 'Free draining' means a liquid as defined in the bullet point immediately above, whether or not it is in a container.

Any additive used must have dehydrating properties or bind the excess moisture content within the waste and, in either case, produce a material that is not liquid waste. Additives such as sand and sawdust absorb liquid temporarily but release it again as waste is compressed within the landfill. These additives are not acceptable for the purposes of the exemption.

The use of additives for this exemption does not absolve waste producers and landfill site operators from fulfilling their obligations incurred under environmental regulations. If you have any doubts about those obligations, you should seek advice from SEPA.

You do not need a certificate from us to apply this exemption but you should keep documents that show the source of the waste and, where relevant, the nature and effect of the treatment it has undergone. Tax will be payable on any waste where you cannot demonstrate that you met the requirements of the exemption.

If you fail to keep and preserve records in relation to this exemption as required (see SLfT8001) then you may be liable to a penalty (see RSTP3002).

LT(S)A 2014 section 7

SLfT3007 - Mining and quarrying waste

SLfT guidance on the conditions that determine whether waste arising from mining and quarrying operations and disposed of to landfill is exempt from SLfT.

Waste arising from mining and quarrying operations and disposed of to landfill is exempt from SLfT provided it meets all the following conditions:

• the waste results from commercial (deep or open-cast) mining operations or quarrying operations. This includes the re-working of tailings to extract further minerals;
• the waste must not, either as part of the mining or quarrying operations or separately, have been subject to a process which permanently alters the material’s chemical composition;
• the waste is naturally occurring material extracted from the earth in the course of these operations; and
• the waste has not been subjected to or resulted from a process separate from the mining/quarrying operation. The exemption can apply to waste arising from winning the primary material from the spoil, but it does not apply to waste arising from the working of minerals from mines/quarries.

All commercial documents must be kept showing the source of the waste. Tax will be payable on any waste where you cannot demonstrate that the requirements of the exemption have been met.

If you fail to keep and preserve records in relation to this exemption as required (see SLfT8001) then you may be liable to a penalty (see RSTP3002).

LT(S)A 2014 section 8

SLfT3008 - Pet cemeteries

SLfT guidance on the exemption from SLfT of pet cemeteries where the site is used solely for the burial of dead domestic pets.

Pet cemeteries may be treated as landfill sites under environmental law. However, burials of dead pets at such sites are not taxable. To qualify for exemption the site must be used solely for the burial of dead domestic pets. In these circumstances the operator of the site is not required to register with us for SLfT.

LT(S)A 2014 section 10

SLfT3009 - Filling of quarries

SLfT guidance on the exemption from SLfT, subject to certain conditions, of waste which is used to fill an existing or former quarry.

Conditions for qualification of exemption

Lower-rated waste which is used for the purposes of filling existing or former quarries may qualify for exemption.

The conditions that must be met in order for the disposal of the waste to qualify for exemption are:

the waste disposed of consists only of material listed in The Scottish Landfill Tax (Qualifying Material) Order 2016 (see SLfT2003 for a summary of this Order; see also SLfT2006 for guidance on instances where the qualifying material contains a small amount of non-hazardous contamination);

the disposal takes place at a quarry;

there is planning consent in place to fill (or partially fill) the quarry; and the permit or authorisation allows the disposal of inert material only.

Definition of a quarry

We depend on common usage of the term quarry. For example, regulation 3 of the Quarries Regulations 1999 defines a quarry as:

'an excavation or system of excavations made for the purpose of, or in connection with, the extraction of minerals (whether in their natural state or in solution or suspension) or products of minerals, being neither a mine nor merely a well or borehole or a well and borehole combined'.

We therefore see the term quarry as also applying to sand, gravel and clay pits and to other surface mineral workings.

‘Old quarries’

Where:

• a quarry was in existence before 1 October 1999;
• quarrying operations ceased before then; and
• there is no planning consent in place either on or before 1 October 1999 to fill the quarry, it will not qualify for the exemption.

Requirement for a compliant licence or permit

Many quarries taking only lower-rated material may still have authorisations for the disposal of other wastes. If you want to benefit from the quarry exemption, you must ensure you meet all the terms and conditions set out in LT (S) Act 2014 s.9. If materials are used for infilling that are not contained in the Scottish Landfill Tax (Qualifying Material) Order 2015, then you are required to register as a taxpayer under s.22 (1) Landfill Tax (Scotland) Act 2014, and liable to pay the appropriate rate of tax on the material that has been used.

If your permit allows you to accept qualifying material and inert material, you will no longer be required to apply to SEPA to vary your permit as long as you are only accepting material listed in the Scottish Landfill Tax (Qualifying Material) Order 2015. If your permit allows you to accept any other material, you must apply to SEPA to vary your permit to remove the authorisation and to only allow you to accept qualifying material. Once your application has been received by SEPA, you may claim the exemption until your application is resolved.

Disposals of material that were exempt from tax during the period between making the application to vary the permit and its resolution (or the two year period from the making of the application if that is the shorter period) remain exempt even if the application is unsuccessful. However, any disposals of material at the site after the end of that period will not qualify for exemption unless the application was granted.

Where an application is not resolved within two years, but is ultimately granted, disposals made during the period between the end of the two years and the date on which the application is granted will not qualify for exemption.

An application for variation of an authorisation is resolved if it is:

granted;

withdrawn;

refused and there is no right of appeal against the refusal;

a time limit for appeal against refusal expires without an appeal having been commenced; or

an appeal against refusal is dismissed or withdrawn and there is no further right of appeal.

LT(S)A 2014 section 9

SLfT3010 Exemption Certificates – clearing up illegally or improperly deposited material

SLfT guidance on the exemption from SLfT of certain activities which qualify for an Exemption Certificate (clearing up illegally or improperly deposited material).

For the purposes of this section of guidance ‘you’ means SEPA, a waste collection authority or any other body or person applying to us for an exemption certificate.

The Scottish Landfill Tax (Exemption Certificates) Order 2015 gives us the power to provide the following authorities, bodies or persons with an exemption certificate for any SLfT liability that may arise from the clear-up of a site following the illegal or improper depositing of material (for example in the cases of illegal dumping and fly-tipping):

• a waste collection authority, insofar as it exercises its waste removal powers under section 59(6)-(9) of the Environmental Protection Act 1990.

‘Waste collection authority’ means a waste collection authority as defined under section 30(3)(c) of that Act (in other words, a local government council);

• SEPA, insofar as it exercises its waste removal powers under regulation 57 of The Pollution Prevention and Control (Scotland) Regulations 2012 or section 59(6)-(9) of the Environmental Protection Act 1990; or
• any other body or person, insofar as the body or person exercises waste removal powers under any other enactment.

Making an application to us for an exemption certificate

Before applying to us for an exemption certificate you must:

• exhaust all avenues to identify, and retrieve costs from, the responsible person who made the original unauthorised disposal; and
• be satisfied (and demonstrate to us in your application) that there are no practical alternatives to landfill for the unauthorised disposal, for example that it is not possible for some or all of the material to be recovered for energy or recycled.  

If both of the above conditions are satisfied, you can apply to us for an exemption certificate by writing to us at the contact address on our website, clearly marking the letter ‘Exemption certificate application’, and providing:

• full details of the applying authority, body or person, including the registered name and postal address;
• full details of the site at which the unauthorised or illegal disposal was made, including:
  • the location, nature and owner of the site (where this can be identified);
  • the estimated tonnage and nature of the material;
  • the general circumstances (including how and when) of you becoming aware about the unauthorised or illegal disposal; and
  • how you were tasked with, agreed to or were legally obliged to perform, the clean-up operation;
• a full explanation of all activities undertaken in relation to your legislative duties (i.e. those outlined earlier – the Environmental Protection Act 1990 or The Pollution Prevention and Control (Scotland) Regulations 2012;
• an explanation as to why it has not been possible for you to either identify or retrieve costs from the responsible person who made the original unauthorised disposal;
• an explanation as to why, in your view, there are no practical alternatives to landfill for some or all of the material which you are applying to us about; and
• (where applicable) details about any of the unauthorised or illegally dumped material which has been recovered for energy or recycled in line with the waste hierarchy.

We will acknowledge receipt of your application, but this will not imply our approval of it. Waste removed without (at the point of removal) an exemption certificate (including where you have applied for one and are awaiting our decision) and later disposed of to landfill will be treated as a taxable disposal for SLfT purposes.

We will deal with most applications within 20 working days, but this may be longer if we need to contact you for further information or arrange a visit.  

We will be unable to consider your application if you fail to supply all of the information required above.

What to do if your application is successful

If we approve your application, we will issue an exemption certificate to you at the postal address you provided in your application. 

You should present the exemption certificate to the landfill operator receiving the disposal (who must be registered with us for SLfT) at the same time as the disposal is made at the landfill site.

The landfill operator will give you a statement detailing the amount of SLfT which (but for the exemption) would be chargeable in respect of the disposal. You should also ensure that you receive a weighbridge receipt for the disposal from the landfill operator - no other method of weighing the waste is acceptable in these circumstances.

Once you have received the statement and weighbridge receipt from the landfill operator, you must notify Revenue Scotland by sending a copy of each to us at the email address SLfT@revenue.scot, as well as a copy of your exemption certificate. 

Guidance for landfill operators in relation to exemption certificates

As outlined above, a landfill operator (who must be registered with us for SLfT) presented with a valid exemption certificate by a waste collection authority, SEPA or other body exercising waste removal powers must give the customer a statement detailing the amount of tax which would (but for the exemption certificate) be chargeable in respect of the disposal. The operator must also give the certificate holder a weighbridge receipt for the disposal.
The statement will be available to download and print from our website shortly, but the weighbridge receipt must include:

• the date and location of the landfill disposal;
• the landfill operator’s SLfT registration number;
• the nature, weight and breakdown of the material deposited (EWC codes; amount of exempt tax; and the tax rate that would have applied to the material if it was not exempt).

The landfill operator must also remember to include the details of this exempt waste disposal in the  exempt column relevant SLfT return.

SLfT3011 - Non-disposal areas

SLfT guidance on non-disposal areas, including the process for contacting or notifying Revenue Scotland about non-disposal area related matters.

Definition of a non-disposal area

We need to be able to distinguish between those activities on a landfill site that constitute a taxable disposal and those that are non-taxable uses of waste. To help us to do this, we require that non-taxable uses of waste take place in a designated area of your site, known as a non-disposal area.

We recommend that you contact SEPA to ensure that any changes you propose to make to your site, or the running of it as a result of the introduction of a non-disposal area, are acceptable under the terms of your permit or authorisation. You may also require planning permission.

Designating an area as a non-disposal area

Guidance for landfill operators on how to notify us regarding a new non-disposal area is available in the section for Non-disposal areas.

We welcome discussion either at, or prior to, the time at which you wish to set up a non-disposal area, or at any point during the operation of the non-disposal area.

We can require you to designate more than one non-disposal area (to allow storage of different types of waste or different activities such as sorting and recycling). We can also require you to use a non-disposal area for one particular use or for a number of uses. In these situations we will require you to identify clearly the quantities and type of material which relate to the different uses.

In requiring you to designate a non-disposal area we will ask you to:

• identify the landfill site concerned;
• specify the date on which the non-disposal area comes into operation;
• specify the uses to which material temporarily deposited in the area(s) is to be put;
• specify the types of material to be deposited in the area(s); and
• set the boundaries of the area(s).

Boundaries of a non-disposal area

We will not require you to fence off the non-disposal area, but it must be clearly identifiable within your site. For example, boundary markers, site roads, buildings or landscape features may help you to identify the area. More than one non-disposal area may be required on a site. Your non-disposal area(s) should be clearly identified on a plan of the site, included in your Permit Management Plan.

You may also wish to change the boundaries of the non-disposal area periodically as your landfilling operations progress. Providing the non-taxable material is clearly identifiable we would not normally object to this, but you will require our prior written approval.

Weighing waste for a non-disposal area

To operate a non-disposal area you will need to weigh all materials being deposited in and removed from the area. If you have a weighbridge we would expect you to use it to weigh all materials going into the non-disposal and all materials removed from the area and used for a non-taxable purpose. If you do not have or cannot use a weighbridge to weigh these materials, you may use an agreed method or propose an alternative method for our approval.

The removal of materials from a non-disposal area to dispose of them to landfill as waste is a taxable activity. You must therefore use a weighbridge to weigh these materials (see SLfT2008).

Non-disposal area record

If you operate a non-disposal area you will need to keep a non-disposal area record. The record must clearly identify the quantities and type of material which relate to different uses that you carry out. The record must include the following details for each time material is deposited in, or removed from, the area:

Where bulk waste is stored in the non-disposal area and the earliest stored waste is inaccessible or unidentifiable we will treat removals from the area as movements of that earliest stored waste.

If you fail to keep and preserve records in relation to this exemption as required (see SLfT8001) then you may be liable to a penalty (see RSTP3002).

Breach of terms of the non-disposal area

If a non-disposal area is not designated when required or the requirements associated with such an area are not met, particularly the maintenance of records and provision of this information if requested, the uses of waste in question will be treated as a taxable disposal and tax will be due.

Should you no longer require to operate an NDA please notify Revenue Scotland at the contact address

The Scottish Landfill Tax (Administration) Regulations 2015 regulation 12