Caltex Australia Petroleum Pty Ltd v Contaminated Sites Committee  WASC 155 delivered 8 June 2017.
A recent decision of Chaney J in the Supreme Court of Western Australia determined that there are restrictions on the types of sites that may be subject to the jurisdiction of the Contaminated Sites Committee (CS Committee), which is the body constituted under the Contaminated Sites Act 2003 (WA) (CSAct) to determine responsibility of persons to remediate contaminated sites. His Honour determined that the jurisdiction of the CS Committee under the CS Act is limited to sites that are classified as contaminated - remediation required and does not apply to sites that may have other classifications in the register kept under the CS Act.
The effect of this decision is that landowners and others who otherwise might have been entitled to make an application to CS Committee to make a determination as to who was responsible for the costs of the remediation of a site, may lose that right if the site is remediated and the site’s classification is changed to another classification such as remediated for restricted use.
The site the subject of this decision had been the subject of a lease operated by Caltex for a petrol station from March 1971 to August 1995 and thereafter until 1999 Caltex supplied Caltex branded petroleum products to the occupiers of the service station on the site. On or about 16 October 2009, the site was classified under the CS Act as possibly contaminated-investigation required. The Department of Environmental Protection determined that further investigations and works were required.
The site was subsequently reclassified to contaminated-remediation required but following certain remediation works and the production of further technical reports including a Mandatory Auditors Report by an accredited auditor, the classification of the site was amended to remediated for restricted use.
The landowners applied to the CS Committee for a determination as to the person or persons responsible for the costs of the investigations and remediation undertaken. Although the landowners had not made a formal application to the CS Committee during the period during which the site was classified as contaminated-remediation required the landowners applied to the CS Committee to make a determination as to who was responsible for the costs of the remediation.
Caltex challenged the CS Committee’s view as to its jurisdiction on the basis that the jurisdiction of the CS Committee only existed while the site was classified as requiring remediation, and that the CS Committee’s powers to make such a determination lapsed after the change in the site’s classification. Caltex instituted court proceedings seeking a writ of prohibition to prevent the CS Committee from deciding who was responsible for remediation of the site.
Issue for determination
The court was required to decide whether the jurisdiction of the CS Committee only arose when a site has been classified as contaminated-remediation required. In the circumstances of this case, the CS Committee’s involvement had been at a time when the site had been classified possibly contaminated-investigation required and later when classified as remediated for restricted use. It was common ground that no application complying with the CS Regulations had been made while the site was classified contaminated-remediation required and no decision was made by the CS Committee in that period.
Reasons for decision
The court provided a helpful review of the provisions of the CS Act, and addressed relevant principles of statutory construction. The court concluded that in its view, the purpose and object of Part 3 CS Act is to provide a mechanism to bring about remediation of sites which require remediation. The court rejected the submissions made by the State on behalf of the CS Committee and held that Part 3 CS Act was not directed to allocation of responsibility for sites which do not require remediation. The court held that Section 23 of the CS Act made clear that the statutory purpose of Part 3 is to achieve remediation of sites where remediation is required.
The court rejected the State’s argument that a limitation on the jurisdiction of the CS Committee would be contrary to the object and purposes of the CS Act in that it would potentially cause delays in remediation. The court held that there was no reason why there should be any delay and the court further noted that where timely remediation is required, there are adequate powers conferred on the CEO of the DER to require the necessary works to be undertaken independently of the CS Committee’s determination.
The court concluded that the CS Committee was in error to form the opinion that it had the power to entertain an application sought by the landowners. The jurisdiction of the CS Committee lapsed after a decision was made to classify the site to remediated for restricted use.
The decision of the Court provides a cautionary example to landowners and others concerned in remediation of contaminated sites, that the right to apply to the CS Committee for a determination as to the responsibility of others (such as the actual polluters) to meet the costs of remediation will be lost if the application is not formally made and determined by the CS Committee while the site is classified contaminated-remediation required. That right will be lost if the site is re-classified, for example to remediated for restricted use. It also follows from this case that the right to apply to the CS Committee will not accrue while the site is classified possibly contaminated- investigation required.
It is recommended that if you are unsure as to whether rights may be affected by this decision, then consider seeking expert legal advice. Lavan’s Planning and Environment team has a wealth of experience in advising on matters in relation to contaminated sites.
Please call Brian McMurdo on (08) 9288 6893 if you have any questions on the potential impacts of this decision.