| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : WASTE AVOIDANCE AND RESOURCE RECOVERY LEVY REGULATIONS 2008 (WA) CITATION : CITY OF FREMANTLE and THE CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF ENVIRONMENT AND CONSERVATION [2013] WASAT 24 MEMBER : JUDGE D R PARRY (DEPUTY PRESIDENT) MR P CURRY (SENIOR SESSIONAL MEMBER)
HEARD : 12 DECEMBER 2012 DELIVERED : 13 FEBRUARY 2013 FILE NO/S : DR 26 of 2012 BETWEEN : CITY OF FREMANTLE Applicant
AND
THE CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF ENVIRONMENT AND CONSERVATION
Respondent
Catchwords: Environmental regulation - Waste avoidance Waste levy exemption application - Exemption sought in respect of receipt at Class 1 inert landfill site of material previously received at another Class 1 inert landfill site and from building and construction, excavation and dredging sites, in order to carry out embankment works at edge of landfill site abutting residential subdivision - Preliminary
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issues - Whether material in respect of which exemption is sought was 'waste received at a licensed landfill' - Whether exemption can be granted retrospectively - Whether legislation applicable to exemption application is current legislation or legislation as it stood when material was received and exemption application made - Words and phrases: 'waste' Legislation: Environmental Protection Act 1986 (WA), s 3(1), s 3(2aa), s 4A
Financial Management Act 2006 (WA)
Interpretation Act 1984 (WA), s 18, s 35, s 37, s 37(1), s 37(1)(c)
Protection of the Environment Operations Act 1997 (NSW), s 143(1)(a)
State Administrative Tribunal Act 2004 (WA), s 29(5)(b)
Waste Avoidance and Resource Recovery Act 2007 (WA), s 3(1), s 3(2), s 5, s 5(2), s 5(1), Pt 7, s 73(1), s 76(1), s 77
Waste Avoidance and Resource Recovery Regulations 2008 (WA), reg 18, reg 18(1)(a), reg 18(2), reg 18(3)
Waste Avoidance and Resource Recovery Levy Act 2007 (WA), s 3, s 4(1), s 5, s 6
Waste Avoidance and Resource Recovery Levy Regulations 2008 (WA), reg 3, reg 3(1), reg 4, reg 4(1)(a), reg 5, reg 5(1), reg 5(1)(c), reg 5(1)(h), reg 5(4), reg 6(1), reg 10, reg 10(6), reg 10(7), reg 12, reg 12(1) Result: Material in respect of which exemption sought is 'waste received at a licensed landfill'
Exemption can be granted retrospectively
Applicable legislation is as it stands at time of review
Matter adjourned for further directions
Summary of Tribunal's decision: The City of Fremantle sought review by the Tribunal of the refusal of its application for an exemption from the Waste Avoidance and Resource Recovery Levy Regulations 2008 (WA). The material to which the exemption application relates was received at the City's licensed inert landfill site and used to carry out embankment works at the site. The majority of the material was sourced from another inert landfill site, at which some of it had been buried, and the remainder from building and construction, demolition, excavation and dredging sites.
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The parties identified three preliminary issues for determination by the Tribunal.
The first issue was whether the material in respect of which the exemption was sought was 'waste received at a licensed landfill' within the meaning of reg 5 of the Levy Regulations. The Tribunal determined that the material satisfied this description and, in particular, that it was 'waste', within the meaning of a statutory definition of that term. It was also 'waste' within the ordinary meaning of the word.
The second issue was whether an exemption application could be granted 'retrospectively', that is, after payment of the levy was due. The Tribunal determined that an exemption application can be granted retrospectively on the proper interpretation of the Levy Regulations.
The third issue was whether the applicable legislation for the purposes of the review was reg 5 of the Levy Regulations as it stood during the return periods when the material was received, or as it stands at the time of the review. The Tribunal determined that the current provisions apply to the review, as the previous provisions have been repealed and have no legislative force, and the City does not have an accrued right to have its exemption application determined in accordance with the earlier criteria.
The proceeding was listed for a directions hearing for further programming.
Category: B
Representation: Counsel:
Applicant : Mr JCW Skinner
Respondent : Ms JE Shaw
Solicitors:
Applicant : Jackson McDonald
Respondent : State Solicitor's Office
Case(s) referred to in decision(s):
AB v State of Western Australia & Anor [2011] HCA 42; (2011) 244 CLR 390; (2011) 281 ALR 694
Environment Protection Authority v Terrace Earthmoving Pty Ltd and Page [2012] NSWLEC 216
Ocsalt Pty Limited v Minister for Mineral Resources and Energy & Anor [2012] SASC 166
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REASONS FOR DECISION OF THE TRIBUNAL:
Introduction 1 The City of Fremantle (City) has sought review by the Tribunal of the decision of The Chief Executive Officer of The Department of Environment and Conservation (CEO) to refuse to grant an exemption from the Waste Avoidance and Resource Recovery Levy Regulations 2008 (WA) (Levy Regulations) for material received at the City's inert landfill site located at Lefroy Road, Beaconsfield (site) which was used to carry out embankment works on the site adjoining a residential subdivision. The parties identified three preliminary issues for determination by the Tribunal in relation to whether an exemption from the levy is required at all, whether an exemption can be granted retrospectively, and whether the applicable legislation for the review is as it stood when the material was received and the exemption was sought, or, as it currently stands.
Background
Material received and used for the embankment works 2 The site is licensed under the Environmental Protection Act 1986 (WA) (EP Act) as a Category 63 Class I inert landfill site to accept up to 50,000 tonnes of Type 1 inert waste and clean fill a year. Type 1 inert waste is: 3 The material for which the City sought an exemption from the Levy Regulations consisted of clean fill, excavated rock, clean topsoil free from vegetation, sand, gravel, clay products, building rubble, bricks, concrete, road base materials, construction and demolition materials and dredged material. The material was brought to the site between March 2010 and September 2010 in order to rehabilitate and reform a large embankment which straddles the western boundary of the site and the eastern boundary of an adjoining property, by extending the area at the top of the embankment on the adjoining property and reducing the slope of the (Page 6)
embankment onto the site (embankment works). The adjoining property, which at all material times was owned by Moltoni No 1 Pty Ltd (Moltoni), was previously licensed under the EP Act and operated as a Category 63 Class I inert landfill site, and was subsequently developed by Moltoni as a residential subdivision (Moltoni land). 4 The majority of the material used for the embankment works was transported to the site by Moltoni from a licensed Category 63 Class I inert landfill site which it operates at Bibra Lake. This material had previously been received at the Bibra Lake landfill site and some of it had been buried at that landfill. The remainder of the material used to carry out the embankment works was sourced from building and construction, demolition, excavation and dredging sites, and was delivered to the site by Moltoni or its contractors. 5 By Deeds entered into by the City and Moltoni in 2004, 2010 and 2011, Moltoni was obligated to carry out the embankment works in accordance, ultimately, with a specification and management plan prepared by Golder Associates in December 2008 and planning approvals granted by the City in October 2009 and July 2010. Moltoni carried out the embankment works between March and September 2010 in accordance with the specification and management plan and the 2010 and 2011 Deeds. In particular, the material used in carrying out the embankment works was required to, and did, comply with the following requirements set out in s 1.2.3 and s 1.3.3 of the specification and management plan: [1.2.3 / 1.3.3] Materials [1.2.3.1 / 1.3.3.1] General The fill shall comprise only Class 1 inert waste, free from organic materials, [asbestos in Area 1, not in Area 2] and any other deleterious materials (i.e. loose or protruding reinforcing bars, etc.). The fill shall be well graded and comply with the following grading. a) Maximum particle dimension shall be 300 mm (after crushing and working). b) No more than 40% by mass shall be greater than 100 mm. c) At least 20% by mass shall be between 75 mm and 2 mm. d) No more than 5% by mass shall be less than 75 µm The materials shall also comply with the following requirements: (Page 7)
a) Reinforcing shall be limited to 3% by volume and shall not protrude for a length of more than 300 mm. b) Materials, which will be accepted at the site, include excavated rock, clean topsoil free from vegetation, sand, gravel, clay, clay products, building rubble, bricks, concrete and road base materials. [1.2.3.2 / 1.3.3.2] Construction Demolition Materials Occasional large boulders, with a maximum diameter of 1.0 m, which can not be crushed to the required maximum particle size, shall not exceed more than one boulder per 5 truck loads of waste brought in. The boulders shall be equally spaced throughout the fill and shall not be grouped together in one area. Boulders shall be handled as described in Section 1.2.2.2. [1.2.3.3 / 1.3.3.3] Dredged Materials Dredged materials shall not have a moisture content exceeding Optimum Moisture Content (OMC) and shall be environmentally tested to ensure compliance with Class 1 waste requirement prior to landfilling and demonstrated to pose no adverse risk to the environment.
Legislative Context 6 Section 5 of the Waste Avoidance and Resource Recovery Act 2007 (WA) (Waste Avoidance Act) sets out the objects of that Act in the following terms: (Page 8)
(2) The principles set out in the EP Act section 4A apply in relation to the objects of this Act. 7 The principles set out in s 4A of the EP Act, which apply under s 5(2) of the Waste Avoidance Act in relation to the objects of the Waste Avoidance Act, are the precautionary principle, the principle of intergenerational equity, the principle of the conservation of biological diversity and ecological integrity, principles relating to improved valuation, pricing and incentive mechanisms, and the principle of waste minimisation. Of particular relevance in relation to the objects of the Waste Avoidance Act are the principles relating to improved valuation, pricing and incentive mechanisms, and the principle of waste minimisation, which are expressed in s 4A of the EP Act in the following terms: … 4. Principles relating to improved valuation, pricing and incentive mechanisms (1) Environmental factors should be included in the valuation of assets and services. (2) The polluter pays principle - those who generate pollution and waste should bear the cost of containment, avoidance or abatement. (3) The users of goods and services should pay prices based on the full life cycle costs of providing goods and services, including the use of natural resources and assets and the ultimate disposal of any wastes. (4) Environmental goals, having been established, should be pursued in the most cost effective way, by establishing incentive structures, including market mechanisms, which enable those best placed to maximise benefits and/or minimise costs to develop their own solutions and responses to environmental problems 5. The principle of waste minimisation All reasonable and practicable measures should be taken to minimise the generation of waste and its discharge into the environment. 8 Part 7 of the Waste Avoidance Act provides for the collection and application of a levy imposed under the Waste Avoidance and Resource Recovery Levy Act 2007 (WA) (Levy Act). Section 4(1) of the Levy Act (Page 9)
authorises the making of regulations under the Waste Act 'prescribing an amount by way of levy that is to be payable in respect of waste received at disposal premises'. The term 'disposal premises' is defined in s 3 of the Levy Act to mean premises 'a) which are used for the purpose of receiving waste; and b) in respect of which the occupier is required to hold a license, whether or not such a license is in force', and therefore includes the site. 9 Section 6 of the Levy Act provides that the holder of a license in respect of disposal premises, including the City in respect of the site, 'is liable to pay the amount of any levy imposed in respect of waste received at the disposal premises'. Section 5 of the Levy Act provides that 'if an amount by way of levy is prescribed in respect of waste received at disposal premises, that levy is imposed in respect of waste received at the disposal premises'. 10 The Levy Regulations provide for a levy to be paid by a licensee (or an occupier where a required license is not held) of a 'licensed landfill'. The term 'licensed landfill' is defined in reg 3(1) of the Levy Regulations to include a Category 63 Class I inert landfill site, such as the site operated by the City. Regulation 18(2) of the Waste Avoidance and Resource Recovery Regulations 2008 (WA) (Waste Avoidance Regulations) requires a licensee to make a quarterly return setting out details of waste received and to lodge the return with the CEO. Regulation 18(3) of the Waste Avoidance Regulations provides that the return must be accompanied by a remittance of the amount of the levy payable on the waste to which the return relates, and reg 18(1)(a) requires a licensee to pay the levy not later than 28 days after the end of each quarterly return period. 11 The amount of the levy payable on waste received at a Category 63 Class I inert landfill site is determined in accordance with a formula set out in reg 12(1) of the Levy Regulations which includes, as a component, the number of cubic metres of waste to which the Levy Regulations apply received at the landfill premises during the return period, determined, relevantly, in accordance with reg 10 of the Levy Regulations. Under reg 10 of the Levy Regulations, the volume of waste used for the purposes of determining the amount of the levy under reg 12 is: [a] surveyor's calculation of the number of cubic metres of waste disposed of to landfill on the premises during the return period based on a comparison of the quarterly survey for that return period and the previous quarterly survey or, if there is no previous quarterly survey, the baseline survey for the premises… . (Reg 10(7)). (Page 10)
12 Regulation 10(6) of the Levy Regulations requires a licensee to lodge a report on a quarterly survey, prepared by a surveyor, with the return made under reg 18 of the Waste Avoidance Regulations for each return period. 13 It is apparent from the foregoing provisions that the purpose of the levy is to create a financial disincentive for waste to be taken to waste disposal/landfill premises, and thereby to minimise the generation of waste and its discharge into the environment, and to create a relative financial incentive for waste to be recycled. This is consistent with the objects of the Waste Avoidance Act to contribute to sustainability, and the protection of human health and the environment, and the move towards a wastefree society, and the principles relating to improved valuation, pricing and incentive mechanisms, and the principle of waste minimisation, stated in the EP Act.
Quarterly returns 14 The City made and lodged quarterly returns setting out details of what it contended was the amount of waste received at the site during the quarterly return periods which ended on 31 March 2010, 30 June 2010 and 30 September 2010. Each return was accompanied by a surveyor's report in accordance with reg 10(6) of the Levy Regulations and the City's remittance for the amount of levy it considered payable. 15 In its letters enclosing the returns, the City noted that there were significant differences between the surveyor's calculation of the number of cubic metres of waste disposed of to landfill on the site and the volume of waste nominated in the return as having been received at the site during the relevant return period. The differences were 10,398 cubic metres in the first quarter, 61,708 cubic metres in the second quarter and 19,917 cubic metres in the third quarter. The volume of waste which the City contended in its returns and letters that was received at the site in these periods was only 252 cubic metres, 42 cubic metres and 786 cubic metres, respectively. The significant differences between the volume of waste calculated by the surveyor and the volume of waste nominated by the City related to the material received and used for the embankment works. 16 In its covering letters, the City contended that the embankment works 'are a civil engineering operation which is being undertaken for a specific purpose unrelated to the operation of the landfill site, and are not a waste disposal operation attracting payment of a landfill levy'. (Page 11)
17 On 21 October 2010, the Director General of The Department of Environment and Conservation (DEC) responded to the City's letters expressing the DEC's view that the material used to complete the embankment works was waste in respect of which levy was payable. The DEC requested payment of outstanding levies in respect of 92,023 cubic metres of waste within 28 days.
Exemption application 18 On 16 November 2010, the City's solicitors wrote to the DEC, referring to the Director General's letter dated 21 October 2010, and making an application under reg 5(1)(c) of the Levy Regulations for an exemption from the landfill levy in respect of the material referred to in the Director General's letter. The City's solicitors stated that the City made the exemption application 'without prejudice to its view, which it maintains, that the material in question is not "waste" and/or was not "disposed of to landfill" in order to attract the landfill levy'. 19 At all material times until 1 July 2011, reg 5(1) of the Levy Regulations was in the following terms: 20 On 2 July 2011, reg 5(1) of the Levy Regulations was repealed and replaced with the following provision: (Page 12)
(b) waste that is not disposed of to landfill but is collected and stored at a licensed landfill for reuse, reprocessing, recycling or use in energy recovery; (c) waste reasonably removed from an orphan site as defined in the Contaminated Sites Act 2003 section 32 by a public authority to mitigate or prevent a risk of harm to human health or the environment; (d) hazardous waste reasonably removed by a public authority; (e) waste resulting from storm, fire, flood or other natural disaster that cannot reasonably be reused, reprocessed, recycled or used in energy recovery; (f) waste that — (i) is deposited on a shoreline by the action of water; and (ii) is reasonably removed from the shoreline by a public authority to mitigate or prevent a risk of harm to human health or the environment; and (iii) cannot reasonably be reused, reprocessed, recycled or used in energy recovery; (g) waste used for construction or maintenance work carried out on the licensed landfill if — (h) waste used for cover on the licensed landfill if — 21 By a letter dated 28 December 2011, the CEO refused the City's exemption application for the following three reasons: (Page 13)
22 On 27 January 2012, the City sought review, pursuant to reg 6(1) of the Levy Regulations, of the CEO's decision to refuse to grant an exemption under reg 5.
Preliminary issues 23 The parties have identified the following three preliminary issues for determination by the Tribunal: 1. Whether the material in respect of which the exemption was sought by the City and refused by the CEO was 'waste received at a licensed landfill' within the meaning of reg 5(1) of the Levy Regulations. 2. Whether an exemption can be granted retrospectively under reg 5(1) of the Levy Regulations. 3. Whether the applicable legislation for the purposes of the review is reg 5(1) of the Levy Regulations as it stood until 1 July 2011 or as it stands at the time of the review. 24 We will address each of the preliminary issues in turn.
Was the material for which exemption was sought 'waste received at a licensed landfill'? 25 As noted earlier, reg 5(1) of the Levy Regulations commences, and has at all material times commenced, with the following words: A licensee may by application in an approved form claim an exemption from these regulations for the following waste received at a licensed landfill in any return period — … 26 The term 'licensed landfill' is defined in reg 3 of the Levy Regulations to include a Category 63 Class I inert landfill site in respect of which a license is held, such as the City's site. It was common (Page 14)
ground between the parties, and clearly the case, that the material for which the exemption was sought by the City was 'received at a licensed landfill'. The principal issue in dispute between the parties was whether that material constituted 'waste' at the time when it was received at the site. 27 The word 'waste' in reg 5(1) of the Levy Regulations is an ordinary, nontechnical, English word which, subject to or as expanded by any applicable statutory definition, bears its ordinary and natural meaning. Section 3(1) of the Waste Avoidance Act contains the following definition of 'waste': waste includes matter — (a) whether liquid, solid, gaseous or radioactive and whether useful or useless, which is discharged into the environment; or (b) prescribed by the regulations to be waste; … 28 As DC Pearce and RS Geddes have observed in Statutory Interpretation in Australia (Lexis Nexis, 7thed, 2011) at [6.61], the word 'includes' in a statutory definition 'is intended to enlarge the ordinary meaning of the [defined] word' (citations omitted). Thus, the ordinary meaning of 'waste' continues to apply in relation to the meaning of that term in reg 5(1) of the Levy Regulations, enlarged or extended by the statutory definition. The most apposite ordinary meaning of the noun 'waste' stated in The Macquarie Dictionary (5th ed, 2009) at page 1860 is 'anything unused, unproductive, or not properly utilised' and 'anything left over or superfluous, as excess material, byproducts etc., not of use for the work in hand'. 29 Mr JCW Skinner, counsel for the City, submitted that it could not be the legislative intention of the definition of 'waste' in s 3(1) of the Waste Avoidance Act to enlarge or extend the meaning of 'waste' to include anything, in any state, whether useful or useless, which is discharged into the environment. He submitted that the statutory definition of 'waste' 'is required to apply and have some regard to the ordinary meaning of the term, as a literal interpretation would result in "waste" encompassing all matter which is deposited in any way onto or into land, water or the atmosphere'. 30 Mr Skinner referred to s 3(2) of the Waste Avoidance Act, which provides that '[i]f a term has a meaning in the EP Act, it has the same (Page 15)
meaning in this Act unless the contrary intention appears in this Act', and to the definition of 'discharge', in relation to waste or other matter, in s 3(1) of the EP Act, which includes 'deposit', and to s 3(2aa) of the EP Act which states, in part, that '[a] reference in this Act to discharge … of anything (whether accompanied by the expression "into the environment" or not) … is a reference to discharge … onto or into land, water, the atmosphere or living things …'. On the basis of these provisions of the EP Act, Mr Skinner submitted that a literal interpretation of the statutory definition of 'waste' in s 3(1) of the Waste Avoidance Act could not reflect the statutory intention of that definition, as it would mean that 'all bricks (as "solid matter") would be waste in all circumstances in which they are deposited onto land - including new bricks that are to be used for a new building, even though such bricks would clearly not be "waste" according to the ordinary meaning of the term'. 31 Mr Skinner submitted that, on the proper interpretation and application of the statutory definition of 'waste', it enlarges or extends the ordinary meaning of waste to include matter, in any state, whether it is useful or useless, provided that the matter still constitutes 'waste' according to the ordinary meaning of the word at the relevant time for determination. Mr Skinner submitted that the purpose of the statutory definition of 'waste' is to ensure that something which is 'waste', according to the ordinary meaning of the word, does not cease to be 'waste' if it is useful. He gave as an example bricks obtained by demolition of a building. Bricks obtained by demolition are waste, according to the ordinary meaning of the word, even though they are useful. Mr Skinner contrasted new bricks to be used for the construction of a new building. Such bricks are not waste, according to the ordinary meaning of the word, and therefore are not waste under the statutory definition, even though they are useful. 32 However, as noted earlier, under s 3(2) of the Waste Avoidance Act, a term in that Act has the same meaning as its meaning in the EP Act 'unless the contrary intention appears in [the Waste Avoidance] Act'. In our view, the Waste Avoidance Act indicates that the expression 'discharged into the environment' in the definition of 'waste' involves the ordinary meaning of the verb 'to discharge', namely, 'to remove, send forth, or get rid of'' (The Macquarie Dictionary, page 478) any material into the environment, and is not intended to be satisfied merely by depositing matter onto or into land, water, the atmosphere or living things. As noted earlier, the primary objects of the Waste Avoidance Act are 'to contribute to sustainability, and the protection of human health and the environment, in Western Australia and the move towards a wastefree (Page 16)
society' by promoting the most efficient use of resources, reducing environmental harm, including pollution through waste, and consideration of resource management options against a hierarchy with avoidance of unnecessary resource consumption at the top, resource recovery in the middle, and disposal at the bottom. Merely depositing new bricks that are to be used for a new building, or any other matter, in whatever state, that is useful, onto land, is not relevant to these objects or to the principles relating to improved valuation, pricing and incentive mechanisms, or the principle of waste minimisation, set out in s 4A of the EP Act. 33 In contrast, removing, sending forth, or getting rid of new bricks, or any other useful matter, into the environment, would be manifestly inconsistent with the objects of the Waste Avoidance Act and the principles relating to improved valuation, pricing and incentive mechanisms and the principle of waste minimisation. Furthermore, it is entirely consistent with the objects of the Waste Avoidance Act and these principles for a levy to be imposed on new bricks, or any other useful matter, received at a licensed landfill, which exists in order for material received at the premises to be disposed of to landfill. 34 It follows that, in our view, the Waste Avoidance Act manifests a contrary intention to the expression 'discharged into the environment' in the definition of 'waste' being satisfied by simply depositing material onto or into land, water, the atmosphere or living things. Furthermore, in our view, the Waste Avoidance Act manifests an intention that the definition of 'waste' in s 3(1) is to apply according to its literal meaning, including the ordinary meaning of 'discharged into the environment'. The statutory definition therefore enlarges or extends the meaning of 'waste' in reg 5(1) of the Levy Regulations to include all matter, in whatever state, and whether useful or useless, that is removed, sent forth or gotten rid of into the environment. This interpretation is consistent with, and promotes, the objects of the Waste Minimisation Act and the relevant principles stated in the EP Act. 35 Furthermore, there is no basis in the statutory definition of 'waste' in s 3(1) of the Waste Avoidance Act, or in the legislation generally, to restrict the meaning of 'waste' to something that is waste according to the ordinary meaning of the word. To the contrary, as noted earlier, the inclusive nature of the definition indicates that its intention is to enlarge or extend the ordinary meaning of the word to include a meaning not otherwise encompassed within the ordinary meaning. If, in order to be 'waste' according to the statutory definition, matter must be 'waste' according to the ordinary meaning, even though it is useful, then the (Page 17)
statutory definition would not enlarge or extend the ordinary meaning. Indeed, on the City's proposed interpretation, the statutory definition would potentially refer to less matter than the ordinary meaning of 'waste', because to be included in the statutory definition, the matter must be discharged into the environment, whereas that is not a requirement of the ordinary meaning. 36 As Mr Skinner's example of bricks obtained by demolition of a building shows, something can be 'waste' according to its ordinary meaning of unused, unproductive, or not properly utilised, or left over as superfluous, as excess material, byproducts, etc, not of use for the work in hand, and still be useful. The effect of the statutory definition of 'waste' is to include within the term, in addition to its ordinary meaning, all matter, in whatever form, and whether useful or useless, which is discharged into the environment. 37 Mr Skinner also submitted that the statutory definition of 'waste' in s 3(1) of the Waste Avoidance Act is not applicable in relation to reg 5(1) of the Levy Regulations, because reg 5(1) requires an assessment of whether material is waste at the time when it is 'received at a licensed landfill', whereas the statutory definition of waste only applies to matter 'which is discharged into the environment'. Mr Skinner submitted that the material had not been 'discharged into the environment' at the time when it was received at the site. 38 We do not accept this submission for three reasons. First, the material was discharged, that is removed, sent forth, or gotten rid of, into the environment, when it was dispatched from its source site and, in the case of the material previously received at the Bibra Lake landfill, again when it was received there and when it was dispatched from there. Thus, the material was 'matter … which is discharged into the environment' when it was received at the site. 39 Secondly, the term 'received' is not defined in the legislation. It is a nontechnical term which is to be given its ordinary meaning. The most apposite meaning of the verb 'to receive' in The MacquarieDictionary at page 1382 is 'to take into one's hand or one's possession (something offered or delivered)' and 'to accept delivery: to receive goods'. In order for material to be 'received' at a licensed landfill, it is necessary for the material to be taken into possession by the landfill and delivery accepted there. This necessarily requires the discharge of the material from the truck in which it has been transported onto the landfill site. Thus the (Page 18)
material was again 'discharged into the environment' when it was received at the site. 40 Finally, s 18 of the Interpretation Act 1984 (WA) (Interpretation Act) states as follows: In the interpretation of a provision of a written law, a construction that would promote the purpose or object underlying the written law (whether that purpose or object is expressly stated in the written law or not) shall be preferred to a construction that would not promote that purpose or object. 41 Regulation 4(1)(a) of the Levy Regulations provides that, subject to any exemption granted on application under reg 5, the Levy Regulations apply to 'all waste received at landfill premises in the metropolitan region on or after 1 July 2008'. The City's submission would not promote the objects of the Waste Avoidance Act or the achievement of the relevant principles of the EP Act referred to earlier, because it would result in the statutory definition of waste in s 3(1) of the Waste Avoidance Act having no application to the waste levy, the collection and application of which is provided for in Pt 7 of that Act. 42 In contrast, an interpretation under which the statutory definition of 'waste' applies to enlarge or extend the ordinary meaning in relation to the levy promotes the objects of the legislation and the principles applicable to those objects, and should therefore be preferred. 43 Finally, Mr Skinner submitted that it is consistent with the objects of the Waste Avoidance Act set out in s 5 of that Act to view the material for which exemption was sought by the City as not being 'waste' within the meaning of reg 5(1) of the Levy Regulations, because this interpretation would encourage the 'reuse' of resources, which is identified in the objects as a form of 'resource recovery', an efficient use of resources and a higher 'resource management option' than disposal. 44 However, while the legislation favours reuse over disposal, having regard to the statutory definition of 'waste', which expressly includes matter that is 'useful' as waste, under the legislation, waste that is received for reuse (or for reprocessing, recycling, energy recovery or any other form of resource recovery) remains 'waste'. Furthermore, the hierarchy of resource management options in the objects of the Waste Avoidance Act can be, and is, reflected in the exemptions that can be granted under the Levy Regulations. Thus, an exemption from the Levy Regulations can be granted under reg 5(1) for waste that is not disposed of to landfill, but is collected and stored at a licensed landfill for (as reg 5(1) stood prior to (Page 19)
2 July 2011) recycling or (as it stood from 2 July 2011) reuse, reprocessing, recycling or use in energy recovery, and (as it stood from 2 July 2011) for waste used for construction or maintenance work carried out on a licensed landfill in certain circumstances. 45 For the foregoing reasons, the material for which exemption was sought by the City and refused by the CEO was 'waste' within the meaning of the statutory definition of that term in s 3(1) of the Waste Avoidance Act and was therefore 'waste received at licensed landfill' within the meaning of reg 5(1) of the Levy Regulations. 46 Although it is unnecessary to determine whether the material was also 'waste' according to the ordinary meaning of that word, for completeness, we consider that the material was 'waste' according to the ordinary meaning of the word when it was received at the site, for the following reasons. 47 Mr Skinner relied upon the analysis and reasoning of Craig J in the New South Wales Land and Environment Court in Environment Protection Authority v Terrace Earthmoving Pty Ltd and Page[2012] NSWLEC 216(Terrace).In Terrace,an earthmoving company and its director were charged with having transported or caused the transport of 'waste' (particularised as material comprising demolition waste including concrete, metal, bricks, plastic and soil) to a place that could not lawfully be used as a waste facility for that waste, contrary to s 143(1)(a) of the Protection of the Environment Operations Act 1997 (NSW). At [176] of the judgment, Craig J referred to the dictionary definitions of 'waste' as a noun and an adjective of 'left over or superfluous …', 'having served a purpose and no longer of use' and 'rejected as useless or worthless, or refuse …'. At [178], Craig J observed that 'the determination as to whether a substance is "unwanted" or "surplus" is to be made on the basis that extends beyond the purview of a particular person or entity' and that 'an element of objectivity must be introduced'. At [183], his Honour expressed the view that 'there is no formula or formulaic expression to be applied to all cases in which the determination of material as "waste" is to be made'. However, at [184], Craig J said the following: Without intending to be exhaustive, the factors relevant for consideration are: (Page 20)
(iii) circumstances in which the substance is obtained and removed from its source; (iv) whether the substance is being transported to a place at which it is intended to be used for the purpose for which demand for the substance has been shown; and (v) the period of time that elapses or is expected to elapse after the substance is transported to the place of its intended use before it is put to that use. 48 Applying this list of factors, Mr Skinner submitted that, in this case, at the time of its receipt at the site, the material was to be productively used and utilised for the embankment works in accordance with the specification and management plan and the Deeds between the City and Moltoni, and was therefore not 'waste' according to the ordinary meaning of the word. This is because, having regard to Craig J's nonexhaustive factors for consideration in Terrace at [184]: (a) The nature of the material is such that it has inherent quality of being 'usable' for various purposes; (b) There was a particular identified purpose or demand for the material, as set out in the 2004 Deed, the specification and management plan and the requirement for the carrying out of the embankment works; (c) While it is unlikely that that the material was originally created with this demand or purpose in mind, the material was later identified, obtained and/or removed by Moltoni for this specific demand or purpose, in accordance with the [2010 and 2011 Deeds]; (d) The material was received at the site with the intent, on the part of both Moltoni and the City, of being used for the embankment works; and (e) The material was used for the embankment works at or about the time that it was received at the site, rather than being stockpiled at the site with an intention for some future use. 49 Ms JE Shaw, counsel for the CEO, noted that Terrace is under appeal and provided a detailed critique of elements of the analysis and reasoning in that decision in light of earlier New South Wales and South Australian authorities. However, it is unnecessary and arguably inappropriate to embark upon an examination of those matters. It is sufficient to observe that it is difficult and dangerous to seek to apply decisions from other jurisdictions concerning differently expressed legislation, with differently expressed statutory objectives, even if the (Page 21)
legislation is related. This is particularly so where the reasoning involves the formulation and application of a set of factors held to be relevant to the different statutory framework. Terrace is also distinguishable in a number of respects from the present case. Although the legislation considered in Terrace was concerned with the protection of the environment, it was not waste avoidance legislation involving a levy for waste received at a licensed landfill, but rather proscribed the transport of waste to a place that could not lawfully be used as a waste facility for that waste. Furthermore, in Terrace the material was never found to have been 'waste', and had never been deposited at a waste facility. 50 In this case, the material used to carry out the embankment works consisted of clean fill and Type 1 inert waste within the meaning of the Waste Definitions, in the form of excavated rock, clean topsoil free from vegetation, sand, gravel, clay products, building rubble, bricks, concrete, roadbase materials, construction and demolition materials comprising large boulders (on occasion) and dredged material. Most of the material had previously been received at the Bibra Lake inert landfill site and some of it had been disposed of by burial at that site. The remainder of the material was sourced from building and construction, demolition, excavation and dredging sites. The City conceded that the material previously received at the Bibra Lake site was 'waste' at the time of its receipt at that site. The City conceded that the material obtained from other sources 'may have been waste' at the time that it was created as a result of the building and construction works, demolition, excavation or dredging and 'may have been waste' at the time it was first sourced or came into the possession of Moltoni or other contractors. In our view, the material not sourced from the Bibra Lake landfill was certainly 'waste' within the ordinary meaning of that word when it was created at its source sites and came into the possession of Moltoni or other contractors. It was something unused, unproductive, or not properly utilised, and left over or superfluous, as excess material or byproducts, not of use for the work in hand. 51 In our view, although the material used for the embankment works was selected on the basis of the specification and management plan and was brought to the site in order to construct the embankment works in accordance with the Deeds between the City and Moltoni, the planning approvals granted by the City and the specification and management plan, it remained waste in accordance with the ordinary meaning of that word when it was received at the site. The nature, character, composition and appearance (as shown in photographs taken by the DEC after receipt at the site clearly showing clay products, building rubble, bricks, concrete (Page 22)
and other material) did not change prior to or at the time of its receipt at the site. It had not been through any material transformative process. As Ms Shaw submitted the material used to carry out the embankment works was not substantially different in nature to that ordinarily received at the site for disposal. The specification and management plan required that the material comprise only 'Class 1 inert waste', free from certain materials, and referred to it interchangeably as 'fill' and 'waste'. 52 Having regard to all of the circumstances, in our view, the material was 'waste' according to the ordinary meaning of that word when it was received at the site, even though it was identified, brought to the site and used to carry out the embankment works.
Can an exemption be granted retrospectively? 53 As noted earlier, one of the CEO's reasons for refusal of the City's application for an exemption from the Levy Regulations was that 'exemptions may not be granted retrospectively'. The CEO maintained that an exemption from the Levy Regulations can only be granted within 28 days of the end of the return period to which the exemption application relates. The parties used the word 'retrospectively' to refer to approval after that time. Ms Shaw relied on three factors in support of the CEO's contention. First, pursuant to s 73, s 76 and s 77 of the Waste Avoidance Act, the amount of levy owed by a licensee of a licensed landfill must be paid within 28 days after the end of the relevant return period (and, if not paid, the levy becomes a debt due to the State and penalties start accruing). Second, the Financial Management Act 2006 (WA) and the Treasurer's Instruction 807 issued under that Act prevents the CEO from deciding not to recover a debt and penalties. Third, the legislation does not specifically address what would happen to a debt and penalties that had already accrued if an exemption application could be granted retrospectively. 54 Section 73(1) of the Waste Avoidance Act provides that 'A levy is due and payable at such time or times, and in such manner, as is prescribed by the regulations'. As noted earlier, reg 18(3) of the Waste Avoidance Regulations provides that a quarterly return must be accompanied by a remittance of the amount of the levy payable on the waste to which the return relates, and reg 18(1)(a) requires a licensee to pay the levy not later than 28 days after the end of each quarterly return period. Section 76(1) of the Waste Avoidance Act provides that, if an amount of a levy remains unpaid after the day on which it becomes due for payment, an additional penalty, calculated at 20% per annum on the (Page 23)
amount unpaid, is also payable. Section 77 of the Waste Avoidance Act provides that a levy that is due and payable and a penalty for nonpayment under s 76 may be recovered by the Minister administering the Act in a Court of competent jurisdiction as debts due to the Minister. 55 The Levy Regulations do not expressly state whether an exemption application can be granted retrospectively, that is after the date by which the levy is required to be paid. However, in our view, on its proper interpretation, reg 5 of the Levy Regulations enables an exemption application to be approved retrospectively, for the following six reasons. 56 First, as Nicholson J held in the South Australian Supreme Court in Ocsalt Pty Limited v Minister for Mineral Resources and Energy & Anor [2012] SASC 166 at [25], an 'exemption' can, in principle, be granted retrospectively. His Honour reasoned as follows: The notion of exempting someone from an obligation does not necessarily speak only with respect to any future opportunities to comply or not comply with the obligation. The word "exempt" as a verb, can be used to mean to grant immunity or freedom from a liability or from the control of laws or obedience to an authority or from a duty or obligation or burdensome state. According to the Macquarie Dictionary, it means to free from an obligation or liability and to release a person from an obligation. The notions to grant an immunity with respect to an obligation, to free from an obligation, to release from an obligation and to exempt from an obligation, do not only speak to future conduct; all can relate to past failure to have observed an obligation. 57 Secondly, the exemption provisions of the Levy Regulations are beneficial legislation, 'advantageous to an individual or to the public' (Statutory Interpretation in Australia at [9.2]) and are, therefore, to be given a 'fair, large and liberal interpretation': AB v State of Western Australia & Anor [2011] HCA 42; (2011) 244 CLR 390; (2011) 281 ALR 694 at [24]. 58 Thirdly, the introductory words of reg 5(1) of the Levy Regulations, namely 'a licensee may by application in an approved form claim an exemption from these regulations for the following waste received at a licensed landfill in any return period', contemplate that an exemption may be claimed at any time, including more than 28 days after the end of the relevant return period. Furthermore, a number of categories of waste in respect of which an application for an exemption may be made contemplate that a licensee may not be aware that an exemption is required until during the return period, including up to the very end of the return period, or that an application cannot be made until something has (Page 24)
occurred during the return period, including potentially at the very end of the return period. In particular, a licensee may well not be aware that an exemption is required in relation to waste resulting from storm, fire, flood or other natural disaster (par (e)) or waste deposited on the shoreline by action of water which is reasonably removed from the shoreline by a public authority to mitigate or prevent a risk of harm to human health or the environment (par (f)), until the very end of a return period. Furthermore, a licensee will not be able to make an application for an exemption for uncontaminated soil or other clean fill (under par (a)) until after the soil or fill 'was accepted by the licensee at no charge', which may well only occur at the very end of a return period. Similarly, until 1 July 2011, reg 5(1)(c) of the Levy Regulations enabled an exemption to be sought for 'approved waste that has been disposed of in an approved manner'. Such an exemption could not be sought until after the approved waste had been disposed of in an approved manner, which could potentially have only occurred on the last day of the relevant return period. Given that reg 5(1) contemplates that an exemption can be claimed at any time and that, in some cases, the need for an exemption may not be known, or an exemption cannot be sought, until the very end of the return period, it is unlikely that the legislation would only allow the CEO 28 days from the end of the return period to grant an exemption. 59 Fourthly, it could not be the legislative intention to deny a licensee an exemption simply because of delay on the part of the CEO, or to enable the CEO to defeat an application for an exemption by not determining it within 28 days after the end of the relevant return period. In this case, it took the CEO over 13 months to determine the exemption application. 60 Fifthly, reg 6 of the Levy Regulations confers a right of review on a person aggrieved by the refusal of an exemption application, or the imposition of conditions or limitations upon the grant of an exemption, under reg 5, to the Tribunal. It could not be the legislative intention to deny a licensee an exemption on review because of delay on the part of the CEO, or to enable the CEO to deny a licensee a right of review by delaying the consideration of an exemption application. 61 Finally, although the legislation does not confer an express power on the CEO to reimburse levies paid by a licensee, and does not specifically address what would happen to the debt and penalties that had accrued if an exemption application is granted retrospectively, reg 4(1) of the Levy Regulations states that the regulations apply to waste received at landfill premises 'subject to any exemption granted on application under reg 5'. It is implicit in reg 4(1) of the Levy Regulations that, if an (Page 25)
exemption is granted under reg 5 after a levy is paid or payable, then, as the regulations do not apply if an exemption is granted, a refund can be made by the CEO in respect of levy paid for the relevant waste. In the course of submissions, Ms Shaw properly conceded that, if an exemption application were refused by the CEO before the levy was due, but granted by the Tribunal on review after the levy was due and paid, then, as the Tribunal's decision is deemed (subject to any order) to have had effect from the date of the CEO's decision (State Administrative Tribunal Act 2004 (WA), s 29(5)(b)), the CEO could, and would be obligated to, refund the levy. Similarly, the CEO could, and would be obligated to, refund a levy paid by a licensee if the CEO grants an exemption after the relevant levy has been paid. 62 Furthermore, it matters not that the CEO is precluded by law from deciding not to recover a debt and penalties. As the Minister may only recover 'a levy that is due and payable' under s 77 of the Waste Avoidance Act, and as, under s 73(1) of the Waste Avoidance Act, 'A levy is due and payable at such time or times, and in such manner, as is prescribed by the regulations', if an exemption is granted under reg 5(1) of the Levy Regulations more than 28 days after the relevant return period, the Levy Regulations do not apply to the receipt of the relevant waste and consequently the levy in respect of which the exemption is granted is not due and payable. Any proceeding for the recovery of a levy or penalty that is unpaid cannot be brought or maintained under s 77 of the Waste Avoidance Act.
Is the applicable legislation as it stood until 1 July 2011 or as it stands at the time of the review? 63 As noted earlier, reg 5(1) of the Levy Regulations was repealed and replaced on 2 July 2011. The exemption application made by the City was for waste received at the site in three return periods during 2010. The City contended that the provisions of reg 5(1) that were in force during the return periods when the waste for which exemption is sought was received continue to apply in relation to the review. In contrast, the CEO contended that, although the exemption application was determined on 28 December 2011, after the change in legislation, on the basis of the former reg 5(1)(c), the application for review is to be determined by reference to reg 5(1) of the Levy Regulations as substituted on 2 July 2011. 64 Ms Shaw referred to s 35 and s 37 of the Interpretation Act. Section 35 of the Interpretation Act provides as follows: (Page 26)
Where a written law repeals an enactment and substitutes provisions for the enactment repealed, the repealed enactment remains in operation until the substituted provisions come into operation. 65 As Ms Shaw submitted, in accordance with s 35 of the Interpretation Act, the repealed reg 5(1)(c) of the Levy Regulations only remained in operation until the new substituted regs 5(1)(c) to 5(1)(h) came into operation on 2 July 2011. As Ms Shaw submitted, once these substituted provisions came into operation, they operated prospectively to apply to all decisions regarding exemption applications after they commenced. 66 Section 37 of the Interpretation Act concerns general savings on repeal of a written law. Section 37(1) of the Interpretation Act provides, in part, as follows: (1) Where a written law repeals an enactment, the repeal does not, unless the contrary intention appears — … (c) affect any right, interest, title, power or privilege created, acquired, accrued, established or exercisable or any status or capacity existing prior to the repeal; (d) affect any duty, obligation, liability, or burden of proof imposed, created, or incurred prior to the repeal; … (f) affect any investigation, legal proceeding or remedy in respect of any such right, interest, title, power, privilege, status, capacity, duty, obligation, liability, burden of proof, penalty or forfeiture, and any such investigation, legal proceeding or remedy may be instituted, continued, or enforced, and any such penalty or forfeiture may be imposed and enforced as if the repealing written law had not been passed or made. 67 As Ms Shaw submitted, it is clear from the terms of reg 5(1) of the Levy Regulations, which at all relevant times has enabled a licensee to 'claim an exemption from these regulations for the following waste received at a licensed landfill in any return period', and from reg 5(4) of the Levy Regulations, which at all relevant times has conferred a discretion on the CEO to grant, whether unconditionally or subject to conditions or limitations, or refuse to grant, an exemption, that the City does not have an accrued right under s 37(1)(c) of the Interpretation Act (Page 27)
either to an exemption from liability to pay levy or to have its application determined in accordance with the terms of reg 5(1) as it stood during the return periods to which the exemption application relates. 68 Indeed, Mr Skinner did not contend that the City has an accrued right to have its exemption application determined under the repealed regulations by virtue of s 37(1)(c) of the Interpretation Act. Rather, he contended that 'the repealed regulations do properly continue to apply to exemptions sought in respect of return periods prior to 2 July 2011, in the sense that the amended regulations do not apply retrospectively'. He submitted that 'the appropriate criteria to determine whether to grant an exemption from the landfill levy in respect of a particular return period are those criteria that applied at the time of that return period'. Mr Skinner sought to draw an analogy in this respect from repealed criminal law legislation which continues to apply to conduct occurring before the repeal. 69 However, the criteria that the City seeks to have applied in this review is repealed and has no legislative force. While it is correct that the exemption application is in respect of waste received at the site in three particular return periods, the City does not have an accrued right under s 37(1)(c) of the Interpretation Act to have its exemption application determined in accordance with the criteria that were in force during the return periods to which its application relates. 70 Furthermore, the provisions of reg 5(1) of the Levy Regulations which came into operation on 2 July 2011 do not have 'retrospective operation' when they apply to the determination of an exemption application on or after 2 July 2011, which relates to waste received at a licensed landfill in a return period prior to 2 July 2011. Rather, they have prospective operation in relation to any pre-existing application that is yet to be determined. Furthermore, irrespective of the scope and operation of the amended regulations, from 2 July 2011, neither the CEO nor the Tribunal on review could grant an exemption for 'approved waste that has been disposed of in an approved manner' received at the site during the relevant return periods in 2010, because the provision enabling an exemption to be claimed (and granted) for such waste had been repealed. 71 Finally, Mr Skinner's reference to repealed criminal law legislation is not relevantly analogous to the present case. Section 37(1) of the Interpretation Act provides that, where a written law repeals an enactment, the repeal does not, unless the contrary intention appears, 'affect any … liability … imposed … prior to the repeal' (par (d)) or 'affect (Page 28)
any … legal proceeding … in respect of any such … liability' (par (f)), 'and any such … legal proceeding … may be instituted [or] continued … as if the repealing written law had not been passed or made'. This enables a prosecution to be brought or maintained for conduct occurring before the repeal of legislation. In contrast, s 37(1) of the Interpretation Act does not save the repealed provisions of reg 5(1) of the Levy Regulations for the purposes of the exemption application now before the Tribunal. 72 It follows that the applicable legislation in this review is reg 5(1) of the Levy Regulations as it stands at the time of the review.
Conclusion 73 The preliminary issues are answered as follows: Orders 74 The Tribunal makes the following orders: 1. The preliminary issues are answered as follows: i) The material in respect of which the exemption was sought by the applicant and refused by the respondent was 'waste received at a licensed landfill' within the meaning of reg 5(1) of the Waste Avoidance and Resource Recovery Levy Regulations 2008 (WA). ii) An exemption can be granted retrospectively under reg 5(1) of the Waste Avoidance and Resource Recovery Levy Regulations 2008 (WA). iii) The applicable legislation for the purposes of the review is reg 5 as it stands at the time of the review. 2. The proceeding is adjourned to a directions hearing at 10 am on 22 February 2013 in the Development and Resources Stream directions list for further programming. I certify that this and the preceding [74] paragraphs comprise the reasons for decision of the State Administrative Tribunal. (Page 29)
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