The defendant had a contract to remove about 425,000 tonnes of material from the site of a new warehouse and lorry park. The claimant sought to require the defendant to register for the aggregates levy pursuant to Section 24(2) of the Finance Act 2001 ("the Act"). The defendant maintained that it was exempt from registration. The VAT and Duties Tribunal agreed with the defendant. This was the claimant's appeal to the High Court from the decision of that tribunal.
It was not in dispute that the materials being removed by the defendant fell within the definition of "aggregate" in Section 17(1) of the Act. The defendant sought to rely upon Section 17(3)(b) which exempted the aggregate from the levy otherwise imposed by the Act if:

"it consists wholly of aggregates won by being removed from the ground on the site of any building or proposed building in the course of excavations lawfully carried out –

(i) in connection with the modification or erection of the building; and

(ii) exclusively for the purpose of laying foundations or of laying any pipe or cable.

The defendant argued that "the site of the proposed building" extended to the full area to be developed. The claimant argued that the site of the proposed building was limited to its footprint.