Landfill Disposals Tax non-disposal areas: technical guidance

This guidance reflects the following provisions in LDTA: Section 8, subsections 55-58 of Chapter 2, Part 5 and Section 68.

It provides an overview of the designation of non-disposal areas (‘NDAs’) and details the duties placed on landfill site operators in relation to NDAs, including record keeping. It details the consequences of breaching the requirements associated with NDAs, including the penalties that may be applied for failure to comply with the designation notice or record keeping requirements.

NDAs enable WRA to distinguish between taxable and non-taxable activities on a landfill site. They ensure that WRA understands where material that is on a landfill site but not deposited in a landfill disposal area is kept, for how long and for what purpose.

Examples of legitimate activities that may take place within NDAs include:

• storage of materials for site restoration
• re-processing and sorting of materials for onward re-use
• recycling or disposal via other means such as incineration

WRA may designate part of an authorised landfill site as an NDA. This designation may follow an application in writing from a landfill site operator, or WRA may designate an NDA on its own initiative, for example where WRA requires certain material be kept in accordance with the requirements of a notice.

Given the range of activities that might take place on the landfill site, a landfill site operator may apply for more than one NDA, or and the WRA may designate more than one NDA, or a combination of both. If WRA considers it necessary, it may request additional information to fully consider an application.

Where a landfill site operator applies for an NDA, WRA must issue a notice of its decision to them.

A designation notice sets out where on a landfill site the NDA is located and a series of requirements related to the management of the NDA, including the date on which the designation of the area takes effect.

The notice must specify:

• the descriptions of material that must be deposited in the area;
• the weighing method (see LDTA/3010) for determining the weight of any material that is deposited in or removed from the area;
• the landfill site activities that may be carried out in the area (an NDA may be used for one particular use or for a number of uses);
• the maximum period for which material may be kept in the area.

The notice may specify:

• descriptions of material that must not be deposited in the area;
• a maximum amount of material that may be kept in the area.

Generally, the NDA designation will require a landfill site operator to use a weighbridge to determine the weight of any material deposited in or removed from the area. An alternative weighing method (see LDTA/3070) may be allowed, for example, where the practical operation of the landfill site means that a landfill site operator may prefer to send material being disposed of from an NDA directly to a landfill disposal area without sending that material via a weighbridge.

A notice may describe material by reference to any matters or circumstances. It could refer to the nature or origin of the material or its intended use or disposal. For instance, WRA may state in the notice that standard rate material must not go in an NDA where qualifying material is being stored.

The notice may include conditions or exceptions and different provision for different cases (including for different descriptions of material).

WRA will discuss the contents of a designation notice with a landfill site operator and the landfill site operator will be expected to demonstrate that the NDA will be operated in accordance with its environmental permit and any planning conditions. Landfill site operators are encouraged to contact Natural Resources Wales to ensure that any changes they propose to make to their site, or the running of it as a result of the introduction of an NDA, are acceptable under the terms of their permit.

When designating an NDA, it is standard practice for WRA to include a condition that the NDA will be subject to an annual review. The Customer Relationship Manager will issue a letter and template annual review form for completion. WRA may vary or cancel a designation at any time and the results of a review may inform a decision to do so. 

WRA may vary or cancel an NDA designation. This may occur following receipt of an application in writing from a landfill site operator or WRA may do so on its own initiative where, for example, it no longer considers the designation to be appropriate.

Landfill site operators should ensure that the details provided as part of their NDA designation remain current and correct and that the NDA is being operated in accordance with the terms of the designation notice. If circumstances change, they should make an application to WRA to vary the NDA designation. For example, an application should be made to the WRA if:

• a landfill site operator holds a time limited agreement for an NDA and would like this to be extended, o if the 
• a landfill site operator wishes to change the boundary of the NDA or if the 
• a landfill site operator wishes to change the material that can be stored in an NDA.

Where the landfill site operator applies for a variation or cancellation of the NDA designation, WRA must issue a notice of its decision to them.

If WRA decides to vary or cancel the NDA designation, the notice to the landfill site operator must set out the details of the variation or cancellation and the date on which it takes effect. The notice may further specify steps the landfill site operator is required or permitted to take in connection with the variation or cancellation. For example, a notice may set out transitional arrangements for moving materials where the boundaries of an NDA are varied.

A decision relating to the designation of an NDA, including in relation to its variation or cancellation may be reviewed and/or appealed. See our guidance on reviews and appeals. 

Pending the resolution of an appeal, a designated NDA will remain in force unless the parties agree otherwise or unless an interim application is made to the tribunal, for example, if there is an alleged offence being committed by maintaining the NDA in its current form. On determining an appeal, the tribunal may uphold, vary or cancel WRA’s decision in relation to the designation of an NDA.

A landfill site operator has a duty to comply with an NDA designation notice.

As explained in LDTA/2040 Designation of the NDA, the notice must specify the descriptions of material that must be deposited in the NDA. However, there may be occasions when the landfill site operator does not want to put or keep such material in the NDA. In such instances, the provisions of the designation notice do not apply where:

• material is going to be disposed or immediately after it is produced or brought onto the site, for example in the landfill disposal area or for site restoration;
• material brought onto the site is being immediately removed from the landfill site, recognising that material can be in transit between places outside of the landfill site (these are often referred to as split loads).

Furthermore, the provisions of the designation notice will not apply where WRA has agreed to material being dealt with in a way that is outside the terms of the designation notice. For example, a landfill site operator might seek agreement from WRA where a burning load or a fly infested load arrives at the landfill site and needs immediate treatment. The landfill site operator must contact WRA as soon as possible to seek agreement that the material is dealt with other than according to the terms of the notice. WRA’s agreement may be unconditional or subject to conditions.

An agreement from the WRA may also relate to the storage of large amounts of similar material (often referred to as bulk waste), whereby WRA could agree to treat removals of this material from the NDA as movements of earlier stored waste.

Keeping and preserving records

The landfill site operator must keep appropriate records of material in an NDA to evidence that the NDA is being operated in accordance with the designation notice. This is known as the NDA record.

The NDA 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:

At any time WRA may request to see the NDA record; this will assist with compliance checks and enable WRA to verify that all material entering and leaving an NDA can be accounted for.

NDA Records must be preserved until the end of the period of 6 years beginning with the date on which the material is removed from the NDA or ceases to be material of a description that must be deposited in the area, whichever is earlier. An agreement may specify a different date from which the period of 6 years begins, which could for example be used in cases involving the storage of bulk waste.

Operating an NDA without WRA’s agreement

If a landfill site operator operates an NDA in the absence of a WRA designation notice, the material deposited will be subject to the normal tax rules and could, depending on the circumstances, be liable to LDT as well as interest and penalties under the Tax Collection and Management (Wales) Act 2016

Breaching the requirements set out in the NDA designation notice including record keeping requirements

Examples of non-compliance with an NDA designation notice include:

• failure to set up or operate an NDA in accordance with designation,
• failure to place material into an NDA as required;
• failure to seek agreement from WRA to vary the terms of the designation where the landfill site operator has altered their practices;
• failure to keep records or keep accurate records of the information required for material in an NDA and/or failure to make that information available to WRA;
• failure to weigh material entering and/or leaving the NDA;
• depositing an excessive amount of material, depositing the wrong type of material and carrying out activities that have not been permitted by the designation within the NDA; and
• the retention of material in the NDA for longer than permitted by the designation.

Where an NDA notice is in place, but the landfill site operator fails to observe all of the requirements in relation to it, they may be liable to a penalty of up to £3000 under Section 68 LDTA.

In addition to the potential penalty above, the landfill site operator may be liable to interest and penalties under TCMA. This may occur in a number of circumstances, as follows:

• where a landfill site operator makes a deposit that breaches the requirements associated with an NDA designation notice, and that deposit is then subject to the normal tax rules.
• if material is placed in an NDA when it should not have been (such as non-qualifying material placed in an NDA designated to store qualifying material), the deposit of that material may be a taxable disposal. If that is the case, the disposal of the material would be subject to LDT and the landfill site operators could be liable to further penalties for failing to comply with relevant requirements relating to that tax (such as the duty to account for and pay the tax).
• material placed outside of an NDA that should have been within it may be considered a taxable disposal in which case WRA may issue an assessment for LDT, and the landfill site operator may be liable to penalties and interest under TCMA.
• Where material is kept in the NDA for longer than permitted by the designation notice, it will be a specified landfill site activity and so deemed to be a taxable disposal from the time at which the specified period expires, in which case WRA may issue an assessment for LDT, and the landfill site operator may be liable to penalties and interest under TCMA.

Where LDT is charged because it should have been stored in an NDA but was not, or because it has been present in the NDA longer than the maximum period and that material is subsequently put in the landfill disposal area, it will not be liable to LDT again. For further information see guidance on exempt disposals.