Summary
The decision of Beech J in Eclipse Resources Pty Ltd v The State of Western Australia [No 4] [2016] WASC 62 has determined that clean fill amounts to waste, and as a result, any development site within the Perth Metropolitan Region which utilises in excess of 500 tonnes of clean fill per annum may be required to be licenced as a prescribed premises under the Environmental Protection Act (EP Act), and may therefore be liable to pay the landfill levy on that clean fill. This not only impacts on the viability of projects moving forward, but also could lead to prosecution action being taken against developers under the EP Act for failing to be licensed, and claims being made by the State for non payment of the levy from as far back as 1 July 2008.
Material Facts
The plaintiff, Eclipse Resources Pty Ltd (Eclipse), undertook quarrying at three sites in the Perth metropolitan area. To fill the voids as a result of the quarrying, Eclipse deposited and compacted materials at each of the sites.1 Such actions were required by the licence agreements Eclipse had entered into with the owners of the sites.2
One of the main issues for determination before Beech J was whether the deposit of clean fill in the voids amounted to ‘waste’ under the statutory scheme and, therefore whether Eclipse was liable to pay a landfill levy for disposing of waste to landfill.3
Legislative Regime:
The legislative regime imposing the levy is complex, stemming from interlocking provisions found in numerous Acts and regulations.4 In particular the Waste Avoidance and Resource Recovery Levy Regulations 2008 (WA) (Levy Regulations) imposes the landfill levy and these regulations have been made under the Waste Avoidance and Resource Recovery Act 2007 (WA) (WARR Act) and under the Waste Avoidance and Resource Recovery Levy Act 2007 (WA) (Levy Act).
The specific sections of the Acts and Levy Regulations which are relevant to the circumstances of this matter, include:
a) Section 5 of the Levy Act imposes the landfill levy via regulations5:
“If an amount by way of levy is prescribed in respect of waste received at disposal premises, that levy is imposed in respect of waste received at the disposal premises”.
b) Section 6 of the Levy Act details who is liable to pay the levy6:
“The holder of a licence in respect of disposal premises, or in the case of disposal premises in respect of which a licence is not in force, an occupier required under the EP Act to hold such licence in respect of the premises, is liable to pay the amount of any levy imposed in respect of waste received at the disposal premises.”
c) Section 3 of the WARR Act states that ‘waste’ includes matter7:
Whether liquid, solid, gaseous or radioactive and whether useful or useless, which is discharged into the environment; or
Prescribed by the regulations to be waste.
(It is important to note that section 3 of the Environmental Protection Act 1986 (WA) is identical to s 3 of the WARR Act).8
d) Regulation 4 of the Levy Regulations delineates the ‘waste’ to which the Levy Regulations apply.9 Subject to the exceptions elucidated under regulation 5, the Regulations apply to:
All waste received at landfill premises in the metropolitan region on or after 1 July 2008; and
All waste collected within the metropolitan region, irrespective of where it is collected, and received at landfill premises outside the metropolitan region on or after 1 July 2008.
e) Regulations 10, 11 and 12 state, among other things, the grounds on which to deduce ‘the amount by way of levy that is payable in respect of waste to which these regulations apply…’10
Eclipse Submissions
Eclipse submitted, among other things, that the materials deposited in the voids constituted clean fill, did not constitute “waste”, and that the materials that were deposited were therefore not to be considered “waste disposed of to landfill”
Eclipse argued that the term ‘waste’ should be afforded its ordinary meaning of unwanted or excess material.11 Consequently, Eclipse maintained that for these reasons, they were not liable to pay the levy.12
These arguments were contested by the State of Western Australia, the CEO of the Department of Environment and Regulation and the Minister for Environment (Government Parties).13
Supreme Court’s Decision
Agreeing largely with the basis for the decision of the State Administrative Tribunal in City of Fremantle and The Chief Executive Officer of the Department of Environment and Conservation [2013] WASAT 24, Beech J rejected Eclipse’s arguments, by finding that clean fill amounts to 'waste' and consequently, its use attracts the levy.14
At [577], Justice Beech concluded:
"… reg 5(1)(a) of the Levy Regulations reveals a clear intention that uncontaminated soil or other clean fill received at premises is waste.
The opening words of reg 5(1) refer to 'the following waste' set out in the paragraphs that follow. Paragraph (a) refers to uncontaminated soil or other clean fill.
It is apparent from the language and structure of reg 5(1)(a) that uncontaminated soil and other clean fill received at premises are waste, and that a licensee can apply for an exemption in respect of them, but only in respect of the last 500 mm of fill, and only if they were accepted at no relevant charge.
Otherwise, uncontaminated soil and other clean fill added to the ground at the premises will attract the levy."
At [462] Beech J went on to state that:
“It is common ground that that in all relevant legislative contexts the word ‘waste’ has its natural and ordinary meaning as extended by the inclusive definition in s 3.”
Lastly, at [627], Beech J concluded that:
“Clean fill, including sand and soil, and what Eclipse calls Natural Earth Material, received from a source for whom they are unwanted waste.”
Implications
The Environmental Protection Regulations 1987 (WA) (EP Regulations), set out the circumstances in which a site is considered to be a prescribed premises (as a Class 1 inert landfill site), thereby requiring a prescribed premises licence. Relevantly, pursuant to the EP Regulations an inert landfill is considered prescribed in circumstances that the amount of “waste” deposited to the site is in excess of 500 tonnes per year.
Given this decision has determined that clean fill amounts to waste, any development site within the Metropolitan Region which utilised in excess of 500 tonnes of clean fill per annum, constructed on or after 1 July 2008, could potentially not only be in breach of the EP Act and EP Regulations, but also be the subject of a claim for non-payment of the Levy in respect of that clean fill.
Accordingly, this decision has the potential to significantly increase the cost of construction across the Metropolitan region and add an additional layer of regulation to the development process.
The implications of this decision should be of most concern to the majority of medium and large scale property developers operating throughout the Metropolitan region, as well as their financiers and consultants. The decision could be particularly detrimental to developers with low lying sites, or sites that require fill to cover ground contaminants. Areas that will be significantly impacted include, among others Forrestfield, Upper Swan, West Swan, Piara Waters, Forrestdale, Armadale.
Lavan Legal comment
Given the significant ramifications of the Supreme Court’s decision, it is imperative that property developers, consultants and financiers are aware that clean fill is now considered ‘waste’ for the purposes of the legislative regime, and that any site requiring more than 500 tonnes per annum of fill will not only require licencing under the EP Act, but will, as a consequence of that licencing, also attract the request to pay the landfill levy.
This liability or potential liability should be factored into the feasibility of any project moving forward, and may, for example, have flow on impacts on timing, staging of development sites, the fragmentation of development sites or re-engineering of site works (to keep a development under the threshold).
In order to ensure the affordable provision of land throughout the metropolitan region, Lavan Legal encourages affected parties to lobby their local members and peak industry bodies (including the Property Council, the Planning Institute of Australia and the Urban Development Institute of Australia) to request that changes be made to the legislative scheme so as to exclude clean fill from being deemed ‘waste’ and therefore attracting the landfill levy.
If your site, or one of your client’s sites are affected by this decision, please contact Lavan Legal’s planning, environment and property team.
1 [1].
2 See, eg [18].
3 [2].
4 [444].
5 [452].
6 [453]
7 [459]
8 [460].
9 [465].
10 [470].
11 [557].
12 [3].
13 [4]
14 [577].
