WA Supreme Court decision may delay the clean up of toxic sites

Wednesday, 26 July 2017

In Western Australia, the Contaminated Sites Committee (CSC) determines responsibility for the clean up of contaminated sites. A recent WA Supreme Court decision1 has confirmed that the jurisdiction of the CSC to determine responsibility is limited to sites that are classified under the Contaminated Sites Act 2003 (WA) (Act) as 'contaminated - remediation required'.

Implications for your business

If you intend to clean up a site and wish to rely on the Act to recover the remediation costs from the polluter, an application must be made and determined by the CSC while the site is

Contaminated Soil

classified as 'contaminated - remediation required'. If the site's classification is altered while an application is on foot, the Supreme Court has concluded that the CSC will have no power to make a decision on responsibility for remediation costs. This means landowners and developers of contaminated land may inherit responsibility for the cost of cleaning up contamination they did not cause. The Supreme Court decision also has significant implications for the timing of remediation works, which could be delayed in circumstances where a statutory right of recourse against the polluter would be lost if the site is cleaned up and reclassified.

Responsibility for site remediation under the Act

The CSC has power under the Act to determine responsibility for remediation where a site has been classified by the WA Department of Water and Environmental Regulation (Department) as 'contaminated - remediation required'. This may occur following the receipt of an application by an interested person (usually an owner or occupier of the site) or on its own initiative.

Those potentially responsible under the Act include the polluter, the landowner, a landowner or occupier who changes the use (or proposes to change the use of land), directors of an insolvent body corporate, a mortgagee in possession and the State Government. The CSC is given broad discretion to determine responsibility and may allocate responsibility to more than one party. The Act refers to a 'hierarchy of responsibility' because if the polluter cannot be found or is insolvent, the landowner will be primarily responsible for remediation. Significantly, a landowner or occupier who changes the use of land (or proposes to change the use, for example, by lodging a development application for a more sensitive land use) will be primarily responsible for remediation under the Act whether or not the polluter can be found or is solvent.

The Supreme Court decision

Factual background

In October 2009, a site in Lesmurdie was classified under the Act as 'possibly contaminated - investigation required'.  In August 2011, the landowners (and respondents in the Supreme Court proceedings) were granted subdivision approval by the WA Planning Commission subject to conditions requiring the investigation of groundwater contamination and validation of remediation work to the specifications of the Department.

In early 2012, the site was reclassified by the Department to 'contaminated - remediation required' which provided the CSC with power to determine responsibility for the cost of site investigation and remediation. However, the landowners did not formally make an application to the CSC to determine responsibility until August 2014 by which time the site had been reclassified to 'remediated for restricted use'. The landowners had progressed with remediation of the site in order to facilitate its redevelopment. The site was suitable for residential use but subject to a restriction on the extraction of groundwater.

By letter of 18 August 2014, the chairman of the CSC advised the landowners that 'the committee may no longer have jurisdiction to make a decision regarding responsibility for remediation, because there is no longer any requirement for remediation (s 23 CS Act)'. Following further submissions, the CSC concluded in January 2016 that it would determine the allocation of responsibility based on the contamination present at the time that the site was classified 'contaminated - remediation required' and within the jurisdiction of the CSC.

In June 2016, the WA Supreme Court granted a writ of prohibition to prevent the CSC from making a decision on responsibility for remediation. Justice Chaney found that the CSC had no jurisdiction to make the decision because the site was no longer classified as 'contaminated - remediation required'.

Competing interpretations of the Act

Section 56 of the Act enables a person to recover the cost of site investigation and remediation work from the person responsible for the contamination by action in a court of competent jurisdiction as a debt due. The WA Attorney General and Minister for the Environment, the interveners in the Supreme Court proceedings, argued that under s 56 a person who is responsible for the remediation of a site will remain responsible for that remediation regardless of whether the remediation has been carried out by another person and the site has been remediated. Justice Chaney did not consider that s 56 supported this interpretation.

Justice Chaney focused on the construction of part 3 of the Act which his Honour observed was directed at the allocation of responsibility for the remediation of sites where it is necessary, specifically s 23 which his Honour concluded is concerned with a present responsibility for the remediation of sites classified as 'contaminated-remediation required', being the only sites required to be remediated under the Act.

His Honour also did not accept the interveners' argument that those who had an interest in achieving remediation would delay taking action in the event that the site was reclassified before the CSC had made its decision. The interveners argued that such delay is contrary to the object of the Act which is to protect human health and the environment. His Honour noted that the CEO of the Department has adequate powers under the Act to require remediation works to be undertaken independently of the CSC's decision.

Scope for legislative reform

There is scope for amending the Act to provide the CSC with jurisdiction to determine responsibility for sites that have been classified as 'contaminated - remediation required' even where the classification has changed following site clean up. This would create greater certainty for landowners and developers, and remove a potential disincentive to the remediation of contaminated sites in WA. 

1[2017] WASC 155, delivered 8 June 2017.

The article was written by Charmian Barton, Partner.

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Important Disclaimer: The material contained in this publication is of a general nature only and is based on the law as of the date of publication. It is not, nor is intended to be legal advice. If you wish to take any action based on the content of this publication we recommend that you seek professional advice.