The recent decision of the Supreme Court of Western Australia in Eclipse Resources Pty Ltd v State of Western Australia [No.4]  WASC 62 considered the meaning of ‘waste’ for the purposes of the landfill levy imposed by the Waste Avoidance and Resources Recovery Levy Regulations 2008 (WA) made under the Waste Avoidance and Resources Recovery Levy Act 2007 (WA).
Between 1 July 2008 and 30 September 2014, Eclipse Resources Pty Ltd (Eclipse) progressively filled voids (at various sites made by previous sand and limestone quarrying activities) with a number of materials, including clean fill, delivered to the site for a fee by third parties. These materials included soil, sand, rocks, limestone, bricks, concrete, building rubble and remediated soil and sand.
While Eclipse sought an injunction and declarations relating to the application of the landfill levy to Eclipse’s operations, the State sought to recover over $10 million from Eclipse in unpaid levies and penalties for non-payment of the levies.
Ultimately, Beech J determined that Eclipse’s activities were subject to the landfill levy. The materials received by Eclipse were ‘waste’ that was ‘accepted for burial’ and ‘disposed of to landfill’ in accordance with the relevant statutory regime.
In doing so, he made the following general findings (at ):
- 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.
- Clean fill, including, sand and soil, received from a source from which they were unwanted are waste.
- 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’.
- The above conclusion applies equally to sand and soil.
- 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 it has been substantially transformed.
- Any material, including sand, soil and other forms of clean fill that is placed into the ground and buried at a licensed landfill is ‘waste disposed of to landfill’.
- The intention with which material is buried does not control or influence whether material is ‘waste disposed of to landfill’.
Beech J also rejected arguments that the levy was invalid on the basis that it was an excise (at -).
The decision is significant as it suggests that the landfill levy could be applied in a broad range of circumstances, including clean fill deposited onto land to make up the levels of land for a subdivision or other development.
For further information, please contact Andre Maynard or Emily Wilson at Castledine Gregory on (08) 9486 7665.
Disclaimer: The information contained in this update is not advice and should not be relied upon as legal advice. Castledine Gregory recommends that if you have a matter in relation to which legal advice is required, you consult with your legal adviser.
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