On 9 March 2016, Justice Beech of the Supreme Court of Western Australia delivered the decision in Eclipse Resources Pty Ltd v The State of Western Australia [No.4] [2016] WASC 62 (Decision), containing a detailed review of the legislative regime that underpins the landfill levy in Western Australia, and a comprehensive analysis of what amounts to “waste” for the purposes of attracting the levy. The Decision raises the prospect of the landfill levy applying to an extremely broad range of circumstances, perhaps even to clean fill used to make up the levels of land in a subdivision.

The Decision runs to 188 pages, although it should be noted that more than half of this is taken up by reference to the parties’ submissions on various findings of fact.

The review of the legislative regime that underpins the landfill levy is found at pages 107-123 (paragraphs [444]-[509]) and includes reference to provisions of the Waste Avoidance and Recovery Act 2007 (WA), the Waste Avoidance and Resource Recovery Levy Act 2008 (WA), Regulations made under both of these Acts, the Environmental Protection Act 1986 (WA) and Environmental Protection Regulations 1987 (WA), as well as provisions of the Landfill Waste Classification and Waste Definitions 1996.

Pages 123-157 (paragraphs [510]-[627]) of the Decision then undertake an analysis of various elements of this legislative regime, including consideration of:

  • the objects of the legislation (paragraphs [510]-[513]);
  • the elements necessary for the levy to be payable (paragraphs [514]-[518);
  • a summary of the various contentions of the parties (paragraphs [519]-[534]);
  • the proper construction of “waste” (paragraphs [553]-[600]);
  • the proper construction of waste “accepted for burial” (paragraphs [601]-[604]); and
  • the proper construction of waste “disposed of to landfill” (paragraphs [605]-[620]).

At paragraph [627], on pages 150-151 of the Decision, Justice Beech sets out the following summary of his conclusions.

(1) In the context of ‘waste received’ and ‘waste accepted for burial’, ‘waste’ is any material that is unwanted by or excess to the needs of the source of that material.

(2) Clean fill, including sand and soil … received from a source for whom they are unwanted, are waste

(3) Material that is received with the intention that it will be or is likely to be put into the ground and buried is ‘accepted for burial’.

(4) That applies equally to sand and soil.

(5) In the context of ‘waste disposed of to landfill’, whether material is waste is not determined by reference to whether it is excess to the requirements of the licensee who is said to be disposing of it. Material that was waste when received will be waste in this context, unless (perhaps) it has been substantially transformed.

(6) Any material, including sand or soil, [or] clean fill … that is placed into the ground and buried at a licensed landfill is ‘waste disposal of to landfill’.

(7) The intention with which material is buried does not control or influence whether material is ‘waste disposed of to landfill’.

The Decision then goes on at pages 151-161 (paragraphs [628]-[685]) to discuss the application of this analysis to the circumstances in question in the case, and finds that Eclipse was liable to pay the landfill levy in respect of its operations at 3 different sites.

The Decision concludes at pages 161-187 (paragraphs [686]-[800]) by dealing with three separate arguments by Eclipse that the levy was invalid on the basis that it was an excise. Those arguments were all dismissed and justify consideration in a separate article.

In relation to the meaning of “waste”, the Decision largely adopts the reasoning  and conclusion reached by the State Administrative Tribunal in City of Fremantle and The Chief Executive Officer of the Department of Environment and Conservation [2014] WASAT 24, in which I acted for the City of Fremantle. In that case, while there was also a finding against the City that the material in dispute was “waste”, other findings by the Tribunal ultimately led to the DEC granting the City an exemption from the levy in respect of that material. It does not appear that the same outcome is available for Eclipse.

Subject to the possibility of an appeal, the Decision is the final word on the scope of “waste” for the purposes of liability for the landfill levy. The breadth of the findings summarised above has potentially far-reaching implications – not only for landfill operators but for various others – and throws up the need for some difficult distinctions. In particular, Eclipse raised the possibility of a developer who purchases clean fill or sand in order to build up the levels of land to be subdivided or developed, meeting the various definitions in the legislative regime for the acceptance or receipt of waste that is then discharged into the environment and disposed of by way of burial or landfill – thereby triggering both the need for the land in question to be licensed as a landfill and also liability for payment of the landfill levy. Justice Beech appears to have accepted that this is in fact a logical outcome of the application of his construction of the legislative regime, and only avoids what he also acknowledges is a “plainly unintended result” by finding (at paragraphs [597]-[598]) that “a contrary intention appears in sch.1 to the [Environmental Protection Act], and in the levy regime, such that the inclusive definition of waste does not apply” in those circumstances. While that may of some comfort to developers, it is hardly appropriate to have to rely on something as tenuous as a “contrary intention” to avoid the outcome referred to above, and it raises a serious need to consider amendments to clarify the intended application of the landfill levy.

For further advice on the Decision and its implications, please contact Julius Skinner or other members of the planning and environment team at LSV Borrello Lawyers.

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