R (on the application of the Durham Company Ltd (t/a Max Recycle)) v Revenue and Customs Commissioners and Another
| Jurisdiction | UK Non-devolved |
| Judgment Date | 08 June 2018 |
| Neutral Citation | [2018] UKUT 188 (TCC) |
| Date | 08 June 2018 |
| Court | Upper Tribunal (Tax and Chancery Chamber) |
[2018] UKUT 0188 (TCC)
Upper Tribunal (Tax and Chancery Chamber)
Mr Justice Nugee
Mr Alan Bates (instructed by Tilly Bailey & Irvine LLP) appeared on behalf of the Claimant.
Mr George Peretz QC (instructed by Government Legal Department) appeared on behalf of the Defendants.
Procedure – Appeals from the Upper Tribunal – Conditions to be satisfied before appeal granted – Whether reasonable prospect of success – Appeals from the Upper Tribunal to the Court of Appeal Order 2008 (SI 2008/2834).
The Upper Tribunal refused permission to appeal and left it to the Court of Appeal to decide whether this was a case where the matters should be allowed to proceed to appeal.
This was an application for permission to appeal to the Court of Appeal against a decision in this tribunal, which was the Upper Tribunal (Tax and Chancery Chamber), made by Warren J (W) sitting as the tribunal.
It was a requirement of s. 13(11) of the Tribunals, Courts and Enforcement Act 2007 that before the Upper Tribunal considered an application for permission to appeal, it must specify the relevant appellate court as respects the proposed appeal and the judge specified the Court of Appeal of England and Wales. Under the Appeals from the Upper Tribunal to the Court of Appeal Order 2008 (SI 2008 No. 2834), by art. 2: “2. Permission to appeal to the Court of Appeal in England and Wales … shall not be granted unless the Upper Tribunal or, where the Upper Tribunal refuses permission, the relevant appellate court, considers that: (a) the proposed appeal would raise some important point of principle or practice; or (b) there is some other compelling reason for the relevant appellate court to hear the appeal.”
In essence, what W decided was that local authorities who were Waste Collection Authorities and collected commercial waste from businesses and other non-domestic users in non-domestic premises in their local authority areas might be doing so in performance of their duties under s. 45(1)(b) of the Environmental Protection Act 1990 (“EPA 1990”) and that that would be a “special legal regime” for the purpose of art. 13(1) of the Principal VAT Directive and s. 41A(1) of the VATA 1994 and hence that those supplies would be activities in which it was engaged as a public authority. He also decided that whether a local authority was in fact providing its commercial waste collection services under s. 45(1)(b) EPA 1990 was a matter to be determined on the facts of each case.
There were three grounds for the appeal. The first, Ground 1, was that the Upper Tribunal erred in law in concluding that Waste Collection Authorities that chose to engage in providing trade waste collection services in competition with private sector providers were (or at least might be) performing their duty under s. 45(1)(b) of the EPA 1990.
The judge saw no error in W's conclusion that local authorities who provided collection services in their area might, depending on the facts, be operating under s. 45 and since that was what he decided, the judge did not see that there was a reasonable prospect of success in challenging that in the way that Ground 1 sought to do.
Ground 2 was as follows: Even if and insofar as the Upper Tribunal was correct that local authorities' supplies of waste collection services constituted a discharge of the duty imposed by s. 45, the Upper Tribunal erred in law in deciding that authorities providing such supplies were doing so under a “special legal regime”. The judge did not regard Ground 2 as having a reasonable prospect of success either.
Ground 3 was that the Upper Tribunal erred in law in deciding that the question of whether a local authority's trade waste collection services were being provided under a “special legal regime” had properly to be determined on a case by case basis by reference to the specific facts of the authority's provision of such services.
If, as the judge had been persuaded, Grounds 1 and 2 did not have a reasonable...
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