![TC09639 - [2025] UKFTT 01113 (TC)](https://backend.juristeca.com/files/emisores/logo_7HSuEAV.png){kind=logo}
Background
Background
On 15 May 2024 Burton appealed to the Tribunal against an assessment to Landfill Tax in the sum of £112,596 relating to material deposited at a site in Derbyshire (the “Site”) operated by Liberty Construction Limited (“Liberty”). HMRC filed and served their statement of case on 11 November 2024. The parties exchanged their LOD, pursuant to Rule 27 of the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009, by 23 December 2024.
On 29 January 2025 the Tribunal issued case management directions (the “Directions”) to progress the appeal to a hearing. Directions 1 and 2 of the Directions, which are relevant to the Application, provide:
“List of documents
1. Not later than 14 March 2025 each party shall:
(1) send or deliver to the other party and the Tribunal a list of documents in its possession or control which that party intends to rely upon or produce in connection with the appeal (“documents list”); and
(2) send or deliver to the other party copies of any documents on that documents list which have not already been provided to the other party and confirm to the Tribunal that they have done so.
Witness statements
2. Not later than 11 April 2025 each party shall send or deliver to the other party statements from all witnesses on whose evidence they intend to rely at the hearing setting out what that evidence will be (“witness statements”) and shall notify the Tribunal that they have done so.”
Direction 3 of the Directions concerns the provision of the Hearing Bundle by the Appellant to the Respondents specifying what should be included in it. Direction 4 states:
“The Appellant shall ensure that the copy in the documents bundle of the witnesses’ statements shall, where there is a reference to an exhibit in the text, include a hyperlink to that exhibit in the documents bundle …”
Burton filed and served an amended LOD on 14 March 2025. HMRC confirmed that they would rely on the LOD previously served.
On 25 April 2025, each party, having been granted an extension of time to do so, provided the other with their witness statements. It is common ground that the Disputed Documents, which it is accepted are relevant, were not included on HMRC’s LOD but were exhibited to the statements of HMRC’s witnesses, Moses Tettey, an officer of HMRC, and Jason Relf, an officer of the Environment Agency (“EA”).
The following Disputed Documents were exhibited to Officer Tettey’s statement:
Exhibit MT3 – A letter dated 14 October from Jacqui Berry, an “Environmental Crime Officer” to an unknown (redacted) recipient suspected of operating or having its waste deposited at the Site.
Exhibit MT4 – A letter dated 16 October from Officer Berry to an unknown (redacted) recipient suspected of operating or having its waste deposited at the Site. The letter includes redaction of the names of three companies which the EA considered was using the Site to deposit “in-ert (soils) waste material”. There is no reference to this letter in HMRC’s statement of case.
Exhibit MT5 – Note of Officer Tettey’s telephone interview with a representative of Liberty, dated 7 April 2021, in which the operation of the Site was discussed. The Note is redacted and the references said to be of Burton are disputed. There is no reference to the Note in the statement of case.
Exhibit MT6 – Note of Officer Tettey’s visit to the Site with EA Officer Runham on 1 November 2022. There is no reference to this note in the statement of case.
Exhibit MT7 – Photographs taken during the visit to the Site on 1 November 2022.
The Disputed Documents exhibited to Mr Relf’s statement were:
Exhibit JR1 – a LIDAR Report, dated 1 November 2021. The Report includes a witness statement from Susan Ogg, a ‘Geomatics Project Scientist’ and EA employee. In his statement Mr Relf relies on the LIDAR Report as illustrating “a significant change in the land levels on the Site” between 18 April 2018 and May 2021 “with a volume change between 42,996m3 and 41,972m3, which is believed to have been undertaken with waste materials”. There is no reference to the LIDAR Report in the statement of case.
Exhibit JR5 – Calculations undertaken by EA Officers leading to a conclusion that 15,428 tonnes of material had been deposited on the Site. Although the cover sheet does refer to “Exhibit JR” it continues subsequently stating:
“This is the exhibit marked “Exhibit JB12” referred to in the Witness Statement of Jason Relf.” (emphasis added)
Document 7 in HMRC’s LOD is the witness statement, with redactions, of EA Officer Jacqueline Berry dated 30 April 2021. There is no reference to these calculations in the statement of case.
Exhibit JR6 – Further calculations undertaken by EA Officers. Similarly to ExhibitJR5, there is a reference to this as “Exhibit JB10”. There is no reference to these calculations in the statement of case.
An email, of 6 June 2025, from Burton to HMRC raised the issue of the Disputed Documents, it stated:
“… It has come to our attention during the process of reviewing the Revenue’s Witness statements/Bundle preparation that several of the exhibits contain documents that were neither listed in the Respondents’ List of Documents nor previously disclosed to us.
As you know, and in accordance with the Tribunal’s Directions, all documents that a party wishes to rely on or produce in connection with the appeal were to be listed and provided to the other party. That has not been done. You cannot rely on documents unless they are in your LOD. You cannot introduce documents for the first time by way of exhibiting them to a witness statement. You could apply to amend your LOD, but you will need permission and/or an EOT. We would object because it is not fair. You will be aware of the decision in BPP Holdings.
This affects:
MT3 - MT7 (inclusive)
JR1, JR5, and JR6.
How do you propose to deal with this? Can you please revert asap as we are supposed to serve/lodge the Bundle by today. In our view, guided by counsel, the simplest way would be for the offending exhibits to be removed, and the witness statements edited appropriately/redacted to remove reference to the contentious exhibits [ie the Disputed Documents].”
Although the parties sought to resolve the issues regarding the Disputed Documents through correspondence, they were unable to do so. On 20 June 2025 Burton made the Application.
HMRC, in their response to the Application, dated 9 July 2025, have stated that the Disputed Documents had been exhibited to the witness statements of Mr Relf and Officer Tettey because they were either not in HMRC’s possession at the time the LOD was produced (in relation to the Disputed Documents exhibited to Mr Relf’s statement as JR5 and JR6) or their relevance only became apparent in the light of the evidence contained in Mr Relf’s and Officer Tettey’s witness statements (in relation to the Disputed Documents exhibited to Mr Relf’s statement as JR1 and exhibited to Officer Tettey’s statement as MT3 – MT7 (inclusive)).
The appeal is at a fairly early stage. No date has been fixed for the substantive hearing. Also, immediately after the hearing of the Application I issued directions staying the proceedings for 28 days from the date of issue of this decision. This was to enable the parties to either provide the Tribunal with their joint proposals for the onward progression of the appeal to a hearing or, if agreement was not possible, for each party to provide the Tribunal with their own proposed directions.