BGC (Australia) Pty Ltd v Environmental Protection Authority

BGC (Australia) Pty Ltd (BGC) sought judicial review of a decision by the Environmental Protection Authority (EPA) to issue a notice under section 43 of the *Environmental Protection Act 1986* (WA) (the Act). The notice required BGC to undertake certain works to remediate contaminated land at a site in Western Australia. The dispute concerned the validity of the EPA's decision and the interpretation of the EPA's powers under the Act. The matter was heard by Gleeson CJ and Gummow J of the High Court of Australia.

The primary legal issue before the High Court was whether the EPA had the power to issue a remediation notice under section 43 of the Act in circumstances where the contamination had occurred prior to BGC's ownership of the land and BGC was not the polluter. Relatedly, the Court had to consider whether the EPA's decision was affected by an error of law, specifically concerning the proper construction of the statutory provisions empowering the EPA to issue such notices and the scope of its discretion.

The Court reasoned that section 43 of the Act conferred a broad power on the EPA to issue a notice requiring remediation works to be undertaken by a person who is the occupier of the premises or the owner of the premises, or a person who caused or contributed to the pollution. The Court held that the EPA's power was not limited to issuing notices only to the original polluter or to a person who caused the pollution during their ownership. Instead, the EPA could issue a notice to the current owner or occupier of the land, even if they did not cause the pollution, provided that the EPA had formed the requisite opinion that it was necessary to do so for the protection of the environment. The Court found that the EPA had properly exercised its discretion and had not made an error of law in issuing the notice to BGC.

The High Court dismissed BGC's application for judicial review.