A recent Supreme Court decision has provided further clarity regarding the scope of the Contaminated Sites Committees’ statutory role to allocate responsibility for the remediation of contaminated sites.
The Committee is an administrative tribunal that has 2 main statutory functions – it assesses appeals against the classification of a site by the Department of Water and Environmental Regulation (‘DWER’) and it determines who is responsible for remediation in the event that it is requested to do so by an interested person. The Committee has no specific power to conduct hearings, swear witnesses or conduct physical examinations so matters are generally decided on documents provided by the parties.
The case involved a common source of contamination – a local service station. A property in Lesmurdie was leased to Caltex from the 1970s to 1995. In late 2009 the site was classified by the DWER under the Contaminated Sites Act 2003 (WA) (‘CS Act’) as “possibly contaminated – investigation required and a memorial was placed on the title.
As a result of DWER receiving technical reports from the landowner the Site was reclassified by the DWER in January 2012 as contaminated – remediation required. However following remediation works and the submission of further technical reports including a Mandatory Auditors Report prepared by an accredited contaminated sites auditor the DWER reclassified the site as remediated for restricted use.
In August 2014 the landowners provided the Committee with a request to make a determination of responsibility for remediation for the Site. Caltex challenged the Committee’s view as to its jurisdiction and instituted proceedings seeking a writ of prohibition to prevent the Committee from deciding responsibility for remediation.
The issue for determination by the Court was whether, on the proper construction of the CS Act, jurisdiction is only conferred on the Committee to make a decision as to responsibility for remediation of a site under section 36 of the CS Act if the site is, at the time the Committee makes the decision, classified pursuant to section 13 of the CS Act as contaminated – remediation required.
The Court focussed on section 23 of the CS Act which provides that ‘the only sites that are required to be remediated under this CS Act are sites classified as ‘contaminated – remediation required.’’ Section 36 of the CS Act provides the power for the Committee to make decisions as to who is responsible for remediation of a site. The Court stated that when read together these sections clarified that the Committee is only concerned with allocating responsibility for remediation of a site classified as contaminated –remediation required and that this is consistent with the statutory purpose the CS Act.
The Court concluded that as no application was provided to the Committee whilst the site was classified as contaminated – remediation required the Committee had no jurisdiction and therefore Caltex was entitled to a writ of prohibition to prevent the application proceeding.
Implications of the Decision
This Supreme Court decision clarifies the limitations of the Committee’s jurisdiction regarding allocating responsibility for the remediation of contaminated sites.
The costs of remediation for contamination are significant. Proponents need to ensure that their environmental plans for remediation and development of a contaminated site align with their strategic approach for allocating responsibility for the site’s remediation. Proponents may need to act with caution to ensure that remediation is not completed before proceedings regarding the responsibility for remediation under the CS Act have been formally determined by the Committee.
New Contaminated Sites Guideline
The DWER has now finalised its guidance document entitled “Identification, reporting and classification of contaminated sites in Western Australia” (June 2017) (‘Guideline’). The Guideline offers useful information regarding how DWER regulate contaminated sites under the CS Act and Regulations 2006.
The draft guideline was released for an extensive period of public consultation. The finalised Guideline contains a series of amendments and offers further detail on the following:
- Issues related to the duty to report contamination;
- Examples that explain what would be considered to constitute ‘suspected’ or ‘known’ contamination and the relevant obligations;
- How terms such as ‘risk’ and ‘background concentration will be interpreted (as they are not defined in the Act or Regulations);
- How to distinguish between contaminated and non-contaminated parts of a land parcel; and
- How the CS Act and the Environmental Protection Act 1986 interact in relation to reporting contamination and licensed waste discharge.
For more information please contact Graham Castledine.
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.
Liability limited by a scheme approved under Professional Standards Legislation.