Eclipse Resources Pty Ltd v The Minister for Environment [No 2]
[2017] WASCA 90
•12 MAY 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: ECLIPSE RESOURCES PTY LTD -v- THE MINISTER FOR ENVIRONMENT [No 2] [2017] WASCA 90
CORAM: BUSS P
NEWNES JA
MURPHY JA
HEARD: 2 - 3 NOVEMBER 2016 & ON THE PAPERS
DELIVERED : 12 MAY 2017
FILE NO/S: CACV 16 of 2016
BETWEEN: ECLIPSE RESOURCES PTY LTD
Appellant
AND
THE MINISTER FOR ENVIRONMENT
Respondent
FILE NO/S :CACV 17 of 2016
BETWEEN :ECLIPSE RESOURCES PTY LTD
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
First RespondentTHE CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF ENVIRONMENT REGULATION
Second RespondentTHE MINISTER FOR ENVIRONMENT
Third Respondent
FILE NO/S :CACV 18 of 2016
BETWEEN :ECLIPSE RESOURCES PTY LTD
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
First RespondentTHE CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF ENVIRONMENT REGULATION
Second RespondentTHE MINISTER FOR ENVIRONMENT
Third Respondent
ON APPEAL FROM:
For File No : CACV 16 of 2016
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :BEECH J
Citation :ECLIPSE RESOURCES PTY LTD -v- THE STATE OF WESTERN AUSTRALIA [No 4] [2016] WASC 62
File No :CIV 2385 of 2013
For File No : CACV 17 of 2016
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :BEECH J
Citation :ECLIPSE RESOURCES PTY LTD -v- THE STATE OF WESTERN AUSTRALIA [No 4] [2016] WASC 62
File No :CIV 2416 of 2014
For File No : CACV 18 of 2016
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :BEECH J
Citation :ECLIPSE RESOURCES PTY LTD -v- THE STATE OF WESTERN AUSTRALIA [No 4] [2016] WASC 62
File No :CIV 1364 of 2009
Catchwords:
Local government and environment - 'Waste' - Material deposited and compacted in voids at premises - Waste management - Statutory construction - Meaning of 'waste' - Meaning of 'waste accepted for burial' - Meaning of 'waste disposed of to landfill'
Constitutional law - Duties of excise - Whether levy imposed on waste disposed of to landfill is a duty of excise
Legislation:
Environmental Protection Act 1986 (WA)
Environmental Protection Regulations 1987 (WA)
Waste Avoidance and Resource Recovery Act 2007 (WA)
Waste Avoidance and Resource Recovery Levy Act 2007 (WA)
Waste Avoidance and Resource Recovery Levy Regulations 2008 (WA)
Waste Avoidance and Resource Recovery Regulations 2008 (WA)
Result:
Appeals dismissed
Category: A
Representation:
CACV 16 of 2016
Counsel:
Appellant: Mr M McCusker QC & Mr S Penglis
Respondent: Mr G R Donaldson SC & Ms J Shaw
Solicitors:
Appellant: Fletcher Law
Respondent: State Solicitor for Western Australia
CACV 17 of 2016
Counsel:
Appellant: Mr M McCusker QC & Mr S Penglis
First Respondent : Mr G R Donaldson SC & Ms J Shaw
Second Respondent : Mr G R Donaldson SC & Ms J Shaw
Third Respondent : Mr G R Donaldson SC & Ms J Shaw
Solicitors:
Appellant: Fletcher Law
First Respondent : State Solicitor for Western Australia
Second Respondent : State Solicitor for Western Australia
Third Respondent : State Solicitor for Western Australia
CACV 18 of 2016
Counsel:
Appellant: Mr M McCusker QC & Mr S Penglis
First Respondent : Mr G R Donaldson SC & Ms J Shaw
Second Respondent : Mr G R Donaldson SC & Ms J Shaw
Third Respondent : Mr G R Donaldson SC & Ms J Shaw
Solicitors:
Appellant: Fletcher Law
First Respondent : State Solicitor for Western Australia
Second Respondent : State Solicitor for Western Australia
Third Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27
Anderson's Proprietary Limited v The State of Victoria [1964] HCA 77; (1964) 111 CLR 353
Australian Education Union v Department of Education and Children's Services [2012] HCA 3; (2012) 248 CLR 1
Bighorn (Municipal District No 8) v Bow Valley Waste Management Commission (2013) ABQB 723
Carter Holt Harvey Ltd v North Shore City Council [2008] 1 NZLR 744
City of Kwinana v Lamont [2014] WASCA 112; (2014) 201 LGERA 334
Cody v J H Nelson Pty Ltd (1947) 74 CLR 629
Collector of Customs v Agfa‑Gevaert Limited [1996] HCA 36; (1996) 186 CLR 389
Commissioner for Australian Capital Territory Revenue v Kithock Pty Ltd [2000] FCA 1098; (2000) 102 FCR 42
Commissioners for Her Majesty's Revenue and Customs v Waste Recycling Group Limited [2008] EWCA Civ 849
Corporation of the City of Adelaide v Circelli [2017] SASCFC 12
Coverdale v West Coast Council [2016] HCA 15; (2016) 214 LGERA 160
Dainford Limited v Smith [1985] HCA 23; (1985) 155 CLR 342
Dennis Hotels Proprietary Limited v The State of Victoria [1960] HCA 10; (1960) 104 CLR 529
Director General of Department of Transport v McKenzie [2016] WASCA 147
Eclipse Resources Pty Ltd v Chief Executive Officer, Department of Environment and Conservation [2013] WASCA 152; (2013) 45 WAR 353
Eclipse Resources Pty Ltd v The State of Western Australia [No 4] [2016] WASC 62
Environment Protection Authority v HTT Huntley Heritage Pty Ltd [2003] NSWLEC 76; (2003) 125 LGERA 332
Environment Protection Authority v N (1992) 26 NSWLR 352
Environment Protection Authority v Shannongrove Pty Ltd [2010] NSWLEC 162; (2010) 176 LGERA 31
Environment Protection Authority v Terrace Earthmoving Pty Ltd [2013] NSWCCA 180; (2013) 84 NSWLR 679
Gosford Meats Proprietary Limited v The State of New South Wales [1985] HCA 5; (1985) 155 CLR 368
Ha v New South Wales [1997] HCA 34; (1997) 189 CLR 465
Howell v Macquarie University [2008] NSWCA 26
Independent Commission Against Corruption v Cunneen [2015] HCA 14; (2015) 256 CLR 1
IW v The City of Perth [1997] HCA 30; (1997) 191 CLR 1
K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd [1985] HCA 48; (1985) 157 CLR 309
Logan Downs Proprietary Limited v The State of Queensland [1977] HCA 3; (1977) 137 CLR 59
M R Hornibrook (Pty) Ltd v The Federal Commissioner of Taxation [1939] HCA 29; (1939) 62 CLR 272
Master Education Services Pty Limited v Ketchell [2008] HCA 38; (2008) 236 CLR 101
Matthews v Chicory Marketing Board (Victoria) [1938] HCA 38; (1938) 60 CLR 263
Municipal Officers' Association of Australia v Lancaster (1981) 54 FLR 129
Mutual Pools & Staff Pty Limited v The Commissioner of Taxation of the Commonwealth of Australia [1992] HCA 4; (1992) 173 CLR 450, 454
News Limited v South Sydney District Rugby League Football Club Limited [2003] HCA 45; (2003) 215 CLR 563
O'Grady v The Northern Queensland Company Limited [1990] HCA 16; (1990) 169 CLR 356
Parton v Milk Board (Victoria) [1949] HCA 67; (1949) 80 CLR 229
Philip Morris Limited v The Commissioner of Business Franchises (Victoria) [1989] HCA 38; (1989) 167 CLR 399
Queensland Nickel Pty Ltd v Commonwealth of Australia [2015] HCA 12; (2015) 255 CLR 252
Re Gray; Ex parte Marsh [1985] HCA 67; (1985) 157 CLR 351
Shannongrove Pty Ltd v Environment Protection Authority [2013] NSWCCA 179; (2013) 84 NSWLR 688
Southside Autos (1981) Pty Ltd v Commissioner of State Revenue [2008] WASCA 208; (2008) 37 WAR 245
Sweeney v Fitzhardinge [1906] HCA 73; (1906) 4 CLR 716
Taylor v The Owners - Strata Plan No 11564 [2014] HCA 9; (2014) 253 CLR 531
Technical Products Pty Limited v State Government Insurance Office (Queensland) [1989] HCA 24; (1989) 167 CLR 45
Wollondilly Shire Council v Foxman Environmental Development Services Pty Ltd [No 5] [2013] NSWLEC 68
Wood v Adelaide Resource Recovery Pty Ltd [2017] SASCFC 13
Workers' Compensation Board of Queensland v Technical Products Proprietary Limited [1988] HCA 49; (1988) 165 CLR 642
Wright v TIL Services Pty Ltd (1956) 56 SR (NSW) 413
Zickar v MGH Plastic Industries Pty Limited [1996] HCA 31; (1996) 187 CLR 310
Table of Contents
Introduction
Background
The sites and Eclipse's business
Licensing and operation of the sites: category 63 - class 1 inert landfill
Eclipse's receipt of materials
The provenance and nature of the materials received by Eclipse at the sites
The filling of voids located on the sites
The nature and provenance of the materials used to fill the voids
Remediated soils
Re-mining generally
Peat
Mulches and blended soils
The statutory regime summarised
Non‑payment of money
The primary proceedings and the primary decision
The elements necessary for levy to be payable
The arguments
The issues
For the first part of the Relevant Period (1 July 2008 until 31 December 2011) in which the CEO made estimates
For the return periods from 1 January 2012 to 30 September 2014
The entirety of the Relevant Period
The judge's conclusions as to the proper construction of the statutory instruments
Judge's conclusions as to the application of the facts to the levy regime properly construed
Legislative Regime
Levy Act
Levy Regulations
Waste Recovery Act and Waste Recovery Regulations
The EP Act and EP Regulations
Landfill Waste Classification and Waste Definitions 1996
The grounds of appeal
Eclipse's arguments in support of grounds 1 and 2
Overarching submissions
Ground 1
Ground 2
Further cases referred to by Eclipse after the hearing
General observations on the statutory scheme
'Prescribed premises' and 'waste' under the EP Act
'Waste' under the Waste Recovery Act
The EP Regulations - 'waste'
Prescribed premises - category 63 in sch 1 of the EP Regulations - 'waste'
The power to levy and the imposition of a levy: 'waste' in s 4 and s 5 of the Levy Act
The Levy Regulations: the levy on 'waste' received at landfill premises
Disposition - grounds 1, 2 and 3
Ground 1
Ground 2
Ground 3
Ground 4
Overview
The dispute at trial
The judge's findings
Eclipse's arguments on appeal
Disposition
Conclusion
REASONS OF THE COURT:
Introduction
These three appeals relate to a decision of Beech J in Eclipse Resources Pty Ltd v The State of Western Australia [No 4][1] (primary decision). The primary proceedings involved three actions concerning the appellant's (Eclipse's) liability to pay a waste levy in respect of its operations at certain sites between 1 July 2008 and 30 September 2014.[2] Liability to pay the waste levy arises under a legislative regime that, in essence, imposes a levy when waste is accepted for burial at premises and disposed of to landfill.[3]
[1] Eclipse Resources Pty Ltd v The State of Western Australia [No 4] [2016] WASC 62.
[2] Primary decision [42].
[3] Primary decision [2], [61].
Eclipse operates an integrated business involving sequential land use and resource recovery operations.[4] As part of its operations, at various times between 1 July 2008 and 30 September 2014, Eclipse received materials from third parties and deposited and compacted some of those materials in voids created by quarrying activities conducted on the sites in question.[5]
[4] Primary decision [53].
[5] Primary decision [1].
The respondents (Government Parties) asserted, in essence, that Eclipse was liable to pay levy under the legislative regime in respect of each site for certain periods in which these operations were conducted.[6] Eclipse submitted that it was not liable to pay the levy or, alternatively, that the legislative regime imposing the levy is unconstitutional because it amounts to a duty of excise.[7]
[6] Primary decision [519].
[7] Primary decision [521].
The primary judge concluded that the legislative regime imposing the waste levy applied to Eclipse's operations at the three sites and, in its application to all or any of Eclipse's sites, the levy was not an excise. His Honour accordingly found in favour of the Government Parties. Eclipse appeals against that decision.
The appeals should be dismissed for the reasons which follow.
Background
The primary decision involved lengthy findings of fact. Many of the facts were agreed at trial and there were relatively few factual issues of any real magnitude.[8] There are likewise no factual issues in dispute on appeal.[9] Eclipse raises four grounds of appeal, each of which asserts errors of law. It is, accordingly, unnecessary to recite in detail all the principal findings of fact made by the primary judge. A summary, based on the judge's findings, is sufficient for present purposes.
The sites and Eclipse's business
[8] Primary decision [10].
[9] Grounds of appeal, WB 15 ‑ 16; respondents written submissions, par 1; WB 53.
The primary proceedings related to Eclipse's alleged liability to pay levy in respect of its operations conducted at three sites located within the metropolitan region in Western Australia[10] (collectively the 'sites' or 'Eclipse's sites'). The sites were at Flynn Drive in Carramar (Flynn Drive Site), Abercrombie Road in Postans (Abercrombie Road Site) and Wanneroo Road in Neerabup (Wanneroo Road Site). Eclipse's liability for its operations at the Flynn Drive Site related to the period 1 July 2008 to 30 June 2009, for the Abercrombie Road Site for the period 1 July 2008 to 30 September 2014, and for the Wanneroo Road Site for the period 1 June 2009 to 20 September 2014.[11] These time periods, corresponding with the 'return periods' for which any levy is payable, will together be referred to as the 'Relevant Period'.
[10] As defined in s 4(1) of the Planning and Development Act 2005 (WA); primary decision [15].
[11] Primary decision [42].
When Eclipse first took occupation of the sites, each site contained a void created by previous quarrying of sand or limestone or both.[12]
[12] Primary decision [16].
Eclipse's business is, in essence, focussed on sequential land use and resource recovery operations. Its business incorporates limestone and sand mining, the production of water retentive soils and mulches, and the production of structural fill for off‑site sales and for on‑site projects.[13] During the Relevant Period, Eclipse conducted the following operations. On the Flynn Drive Site, Eclipse:[14]
(a) produced mulch for use on the site;
(b) produced blended soils for use on the site; and
(c)completed the filling of the former quarry void on the site.
[13] Primary decision [53].
[14] Primary decision [44].
On the Abercrombie Road Site, Eclipse:[15]
(a)quarried virgin, naturally occurring, sand and limestone from the site, thereby increasing the size of the void created by the existing quarry;
(b)produced mulch for sale;
(c)produced blended soils for sale;
(d)continued to fill the quarry void on the site; and
(e)at times from about July 2014, removed materials it had previously deposited and compacted in the quarry void on the site.
[15] Primary decision [46].
On the Wanneroo Road Site, Eclipse:[16]
(a)excavated some remediated (previously acidic) peat and accompanying limestone buried by Eclipse at the site between June 2002 and March 2004;
(b) produced mulch for sale;
(c) produced blended soils for sale; and
(d)continued to fill the void on the site.
Licensing and operation of the sites: category 63 - class 1 inert landfill
[16] Primary decision [47].
Throughout the Relevant Period, the Flynn Drive Site, the Abercrombie Road Site and the Wanneroo Road Site were all licensed by the Department of Environment Regulation (DER) under pt V of the Environmental Protection Act 1986 (WA) (EP Act).[17] The Flynn Drive Site had a licence identifying it as, relevantly, a 'Category 63 - Class I inert landfill site' and allowed for a 'nominal rated throughput' of not more than 500,000 tonnes of 'waste accepted' per year.[18] The Abercrombie Road Site was licensed as having a capacity of 50,000 to 500,000 tonnes per annum for the category 63 'Class I Inert Landfill'.[19] The Wanneroo Road Site was licensed by DER as having a capacity for category 63 'Class I inert landfill' of 50,000 to 500,000 tonnes per annum.[20]
[17] Primary decision [296] - [306].
[18] Primary decision [265] - [266], [296].
[19] Primary decision [276].
[20] Primary decision [288].
There were various quality controls, inspection and testing measures applied to the materials received at the sites, which had to meet certain environmental and geotechnical standards imposed by Eclipse. Eclipse determined the environmental suitability of the materials received by reference to certain criteria published by the DER known as, relevantly, 'Environment Investigation Levels (EILs)' and 'Health Investigation Levels (HILs)'.[21]
[21] Primary decision [54] ‑ [55], [112] ‑ [130].
Eclipse categorised the materials received from third parties for invoicing purposes. Its classification codes were, broadly, as follows:[22]
[22] Primary decision [104].
(a)Clean Construction and Demolition Materials - for which no sorting was required and which were established as meeting EILs by virtue of sampling and analysis;
(b)Natural Earth Material (predominantly sand) - for which analytical data had been provided, before acceptance by Eclipse, showing that the material met EILs;
(c)Acidic peats containing organic matter - in respect of which Eclipse was satisfied, on the basis of analytical data, that the materials would be capable of remediation to counter their acidity;
(d)Acidic soil - for which analytical data satisfied Eclipse that the soils were capable of remediation to counter their acidity;
(e)Soils suitable for bio‑remediation - soils contaminated with hydrocarbons or some pesticides for which analytical data indicated that the materials could be bio‑remediated;
(f)Any other special job - for example, one that requires special handling, processing or pricing;
(g)Soil actually or potentially containing asbestos chips;
(h)Inert material which analytical data indicated that the materials may exceed EILs, but did not exceed HILs;
(i)Structural fill - product made from recycled and virgin materials to meet customer specifications;
(j)Virgin materials - materials coming from a site and a reputable operator known to Eclipse, usually accepted and then stockpiled for use in blended soils or for final cover;
(k)General inert construction and demolition materials with only minor sorting required; and
(l)Asbestos.
Eclipse's receipt of materials
During the Relevant Period, Eclipse received and accepted materials from third parties at each of the sites. The materials received by Eclipse would generally be transported by a third party to a site in a large truck, with the capacity of more than 20 tonnes. At some of the sites, materials were delivered to Eclipse in skip bins.[23]
[23] Primary decision [71] - [73].
Some of the trucks arriving at a site were directed to deposit their loads at the operational bench in the void at the site.[24]
[24] Primary decision [638].
Eclipse sorted materials received at the sites when it considered it necessary to do so. In sorting materials, Eclipse removed, where necessary:[25]
(a)materials such as plastic and timber and transported them off‑site to a licensed Class III landfill;
(b)metals for separate stockpiling and subsequent sale by Eclipse as scrap metal; and
(c)plant material for separate stockpiling in its mulching area for use in the production of mulch.
The provenance and nature of the materials received by Eclipse at the sites
[25] Primary decision [136].
The materials received by Eclipse at the sites were given to it by persons who had no present use for the materials, who did not want the materials, and who generally paid Eclipse to accept them.[26]
[26] Primary decision [74].
There was no evidence, and the judge was not satisfied, that Eclipse paid for any of the material that it received at the sites for deposit and compaction in the voids.[27]
[27] Primary decision [75].
Eclipse sometimes did not charge for, nor was it paid for, materials it needed to produce blended soils.[28]
[28] Primary decision [75].
At each of the sites, Eclipse accepted:[29]
(a)plant material, including grass and tree branches, stumps and logs arising from vegetation clearing as part of site works for residential, commercial and industrial development, and from kerb‑side pickups by local governments; and
(b)materials that came from construction, demolition and remediation works and earthworks on other sites, including works relating to tunnels, underground car parks, roads, railways, service trenches, commercial and industrial developments and smaller‑scale housing sites and swimming pools.
[29] Primary decision [88] ‑ [89].
More particularly, the provenance of the materials accepted by Eclipse included:[30]
(a)materials that had been excavated as part of the preparation of sites for development which were unsuitable for, or in excess of requirements of, the developer;
(b)surplus materials from construction and demolition projects;
(c)virgin material and construction and demolition material from site cleanups; and
(d)materials arising from the demolition of buildings and infrastructure, being mainly concrete and bricks.
[30] Primary decision [90].
The nature of the materials accepted by Eclipse at the sites included:[31]
(a)Soil (sometimes containing plant roots or other plant matter), sand, rocks, limestone (except at the Flynn Drive Site), clay, peat, silt and diatomaceous earth (at the Abercrombie Road Site only).
(b)Bricks, pavers, concrete (including reinforced concrete), limestone blocks, bitumen, asphalt, gravel, roof tiles, other tiles, and small quantities of glass (for example, bottles), plasterboard, Hardifence panels and other rubble arising from construction and demolition works and earthworks.
(c)Small quantities of plastic strapping (including green plastic brick strapping), wrapping, sheeting, bags and piping and other plastic (such as buckets and drink containers).
(d)Small quantities of paper packaging, cardboard, wood (including wooden pallets), steel roof sheeting, corrugated metal sheeting, metal wires, and other metal (such as metal drainage grates and paint cans).
(e)Small quantities of bicycles, bathtubs, fabric, carpet and insulation materials.
[31] Primary decision [91].
Eclipse also accepted at the sites loads of material containing a mixture of different types of material, including soil mixed with bricks, concrete, tiles and pieces of plastic, metal and paper.[32]
[32] Primary decision [92].
In relation to the Abercrombie Road Site (between 1 July 2008 and June 2012) Eclipse also accepted materials containing asbestos wrapped in plastic. It also accepted soils containing or potentially containing asbestos chips at the Abercrombie Road Site during the Relevant Period.[33]
[33] Primary decision [93].
At the Abercrombie Road Site, Eclipse also accepted soils contaminated with hydrocarbons and pesticides.[34]
[34] Primary decision [98].
Also at the Abercrombie Road Site and the Wanneroo Road Site, Eclipse accepted acid sulphate soils (including peats).[35]
[35] Primary decision [99].
During the Relevant Period, a significant proportion of the materials received by Eclipse comprised soils, sand, peat, riverine silts, clay and limesand dredgings excavated from source sites classified under the Contaminated Sites Act 2003 (WA). Eclipse accepted materials from classified sites with the intention that they would be remediated or bio‑remediated.[36]
[36] Primary decision [101].
Quantities of rock and concreting materials accepted by Eclipse have considerably decreased, although gradually, from 2008. Mr Sippe of Eclipse estimated that no more than approximately 5% of material accepted by Eclipse comprised rocks and concrete during the Relevant Period.[37]
The filling of voids located on the sites
[37] Primary decision [103].
As is apparent from the foregoing, an element of Eclipse's operations at each of the sites during the Relevant Period included the filling of voids located on the sites.[38] The filling of the voids was conducted so as to make the land suitable for its intended ultimate purpose, which was for subdivision or use as a national park or private open space.[39] The voids were filled and compacted and then a final cover of material would be placed over the compacted material.[40]
[38] Primary decision [53].
[39] Primary decision [219].
[40] Primary decision [38], [67], [97], [202] - [205], [348], [603], [635] - [640].
More than 500 tonnes of material had been deposited on each site for each year of the Relevant Period.[41] The evidence showed that:
(a)a total of 96,824 m3 was deposited as fill at the Flynn Drive Site during the Relevant Period;[42]
(b) a total of 443,380 m3, net, was deposited as fill at the Abercrombie Road Site during the period 1 July 2008 to 31 March 2013;[43] and
(c)a total of 96,464 m3 was deposited as fill at the Wanneroo Road Site during the period 1 June 2009 to 30 September 2012.[44]
The nature and provenance of the materials used to fill the voids
[41] Primary decision [267], [277], [289].
[42] Primary decision [268] ‑ [269].
[43] Primary decision [278] ‑ [283].
[44] Primary decision [290] ‑ [293]. Note, [290] contains a typographical error. It refers to 11 June 2009, whereas it should refer to 1 June 2009.
Generally speaking, the materials received by Eclipse, for filling voids, were materials that the third parties did not want or need. Eclipse did not pay for any of the material that it received at the sites to be deposited and compacted in the voids.[45] The third parties generally paid Eclipse to accept the material. They were materials for which, at the time they were deposited, Eclipse had no other higher use (eg, for its mulching operations and blended soil operations).[46]
[45] Primary decision [74] ‑ [75].
[46] Primary decision [178].
The materials deposited and compacted in the voids at the sites during the Relevant Period included:
(a)soil;
(b)sand;
(c)rocks;
(d)limestone;
(e)bricks;
(f)concrete;
(g)building rubble; and
(h)remediated soil or sand.[47]
[47] Primary decision [207].
Building rubble itself included, as minor inclusions, pieces of metal, brick strapping, wood and plastic.[48]
[48] Primary decision [209].
In addition, at the Abercrombie Road Site and the Wanneroo Road Site, the material compacted in the voids included small quantities of timber, plastic, metal and cardboard.[49]
[49] Primary decision [214].
Building material which was deposited and which included building rubble, such as broken concrete or bricks, was not 'clean fill' as defined in the Waste Definitions.[50] (The Waste Definitions are referred to later in these reasons at [109] below.)
Remediated soils
[50] Primary decision [662].
Any remediated acid sulfate soils which were not suitable, or were not, at that stage, wanted by Eclipse for the production of blended soils or as final cover materials, were deposited and compacted in the voids at the sites.[51]
Re-mining generally
[51] Primary decision [157].
There was some evidence that the material could be re‑mined and thereby used as a resource for other purposes.[52] Eclipse used the term 're‑mining' to describe excavations of material that has been received and deposited on site, the purpose of the excavation being to produce products, principally structural fill or water retentive soil products.[53]
[52] Primary decision [219].
[53] Primary decision [218].
With respect to the Flynn Drive Site and the Wanneroo Road Site, his Honour was not satisfied that Eclipse re‑mined materials deposited and compacted in the voids at those sites during the Relevant Period. Nor was his Honour satisfied that Eclipse deposited any of the materials in those voids for the substantial or operative purpose of later extraction or availability for later extraction. Further, with specific reference to the Flynn Drive Site, his Honour noted that the site had been landscaped and found that Eclipse had no intention to re-mine any of the deposited and compacted materials in the site’s void, now or in the future.[54]
[54] Primary decision [239] ‑ [240], [771].
With respect to the Abercrombie Road Site, his Honour found that no re‑mining of materials in the void occurred in a substantial or organised way before 22 August 2014.[55] It was only in July or August 2014 that Eclipse formed an intention to extract, to any significant degree, materials that had been deposited in the void at the Abercrombie Road Site in order to use the materials to make products.[56] It followed that, from about August or perhaps July 2014, Eclipse deposited material in the void in order to fill it, but also so that the deposited and compacted material would be available for re‑mining for use in the production of soil and sand products.[57] For the period 30 June 2014 to 30 September 2014, approximately 47,900 m3 of materials were extracted from the void on this site.[58]
Peat
[55] Primary decision [243].
[56] Primary decision [246].
[57] Primary decision [257].
[58] Primary decision [259].
Eclipse gave certain evidence of receipt at the Flynn Drive Site of peat from Innaloo in 2006, in what it called an example of re‑mining. Although this peat was remediated in situ in the void at the Flynn Drive Site, it was not compacted.[59] At the Abercrombie Road Site certain peat from Innaloo was received, but not deposited in the void.[60] Other peat material received at the Flynn Drive Site prior to February 2005 was not compacted.[61] Even if it had been compacted, the material was not intended to be used to produce other products for sale.[62]
[59] Primary decision [223].
[60] Primary decision [224].
[61] Primary decision [225] ‑ [228].
[62] Primary decision [229].
Peat was received, remediated and buried at the Wanneroo Road Site from 2002 ‑ 2004.[63] Since, in effect, 2008, Eclipse has been permitted to extract peat from the Wanneroo Road Site, and has since done so. Eclipse has not paid any levy in respect of peat buried at the Wanneroo Road Site in the period 2002 ‑ 2004, and the Government Parties do not make any claim for levy in respect of such peat.[64]
Mulches and blended soils
[63] Primary decision [230], [234].
[64] Primary decision [231] - [234].
As noted above, mulch was produced from plant material received at the sites.[65] The plant material was stockpiled and then ground with the use of a tunnel grinder.[66] At least some of the mulch produced at the Wanneroo Road Site and the Abercrombie Road Site during the Relevant Period was sold and distributed by Eclipse Soils.[67]
[65] Primary decision [140].
[66] Primary decision [141].
[67] Primary decision [143].
Eclipse also produced blended soils from certain materials received at the sites. Eclipse produced blended soils by mixing together different types of soils from stockpiles (including stockpiles of remediated soils),[68] together with other materials, such as mulch fines, clay, fly ash and sand.[69] It also used peat, which it had previously deposited at the Wanneroo Road Site in 2002 ‑ 2004, and which it dug out during the Relevant Period. The blended soils at the Flynn Drive Site, and some of the blended soils at the Wanneroo Road Site, were used as final cover material. The blended soils at the Abercrombie Road Site, and the remainder of the blended soils produced at the Wanneroo Road Site, were marketed, sold and distributed by Eclipse Soils.[70]
[68] Primary decision [156(a)(i), (b), (c)], [163(c)], [167].
[69] Primary decision [167].
[70] Primary decision [47(a)], [168], [170] ‑ [172].
As noted earlier, the materials which Eclipse deposited and compacted in the voids throughout the Relevant Period were materials for which it had no other use, such as in its blended soils or mulching operations.[71]
The statutory regime summarised
[71] Primary decision [178].
As noted earlier, the judge observed that, in general terms, a waste levy is applied when waste is accepted for burial at premises and disposed of to landfill.[72] This levy arises by reason of the Waste Avoidance and Resource Recovery Levy Regulations 2008 (WA) (LevyRegulations). These regulations are made under the Waste Avoidance and Resource Recovery Act 2007 (WA) (Waste Recovery Act) and by virtue of s 4(1) of the Waste Avoidance and Resource Recovery Levy Act 2007 (WA) (Levy Act). Other relevant bodies of legislation include the Waste Avoidance and Resource Recovery Regulations 2008 (WA) (Waste Recovery Regulations), the EP Act and the Environmental Protection Regulations 1987 (WA) (EP Regulations).
Non‑payment of money
[72] Primary decision [2].
Eclipse has not paid any money in respect of the (alleged) levy since 1 July 2008.[73] For the period 1 July 2008 until 31 December 2011, the chief executive officer of the DER (CEO) made estimates of the levy payable by Eclipse. A bank guarantee for $100,000, provided by Eclipse to DER on 6 August 1998, was called on 19 July 2010 in respect of the estimations.[74] The Government Parties' claimed $10,535,632.70 by way of unpaid levy plus penalties.[75]
[73] Primary decision [437].
[74] Primary decision [439], [441].
[75] Primary decision [523]; note that the final judgment was for $12,630,808.80 by way of levy plus penalties.
The Government Parties claimed the amounts estimated by the CEO as levy payable for each return period from 1 July 2008 until 31 December 2011. Since 1 January 2012, no estimates have been made and so the Government Parties did not make any claim for levy payable. Rather, for the return periods since 1 January 2012, Eclipse sought declarations to the effect that it was not liable to pay levy.[76]
[76] Primary decision [525].
The primary proceedings and the primary decision
The elements necessary for levy to be payable
In a section of his reasons under the above heading, the judge said:[77]
[77] Primary decision [514] - [518].
In order for levy to be payable by Eclipse, it must be established that waste was 'received at a category 63 landfill premises' within the meaning of reg 12 of the Levy Regulations. If that is established, it would also engage reg 4(1)(a), which applies to 'waste received at landfill premises'. Landfill premises include (but are not limited to) category 63 landfill premises. Premises will be a 'category 63 landfill premises' if and only if the activities set out in category 63 under 'description of category' are conducted on the premises. That will be so whether the premises are licensed or unlicensed.
Thus, the Government Parties must show, for each of the Sites and for each return period, the following:
(1)The site was a category 63 landfill premises, within the meaning of sch 1 of the EP Regulations, adopted in the Levy Regulations. That requires that the site was premises on which 'waste' was 'accepted for burial'.
(2)'Waste' was 'received at' the site within the meaning of reg 4 and reg 12 of the Levy Regulations. That phrase is to be construed as having the same meaning as it has in s 4, s 5 and s 6 of the Levy Act.
There is a third requirement, which arises in the following way. The amount of levy calculated under reg 12 of the Levy Regulations is founded on the volume of waste 'disposed of to landfill', which is to be determined under reg 10 (by calculation by a surveyor) or estimated by the CEO under reg 11.
Thus, no levy will be payable unless it is shown that:
(3)'Waste' was 'disposed of to landfill' within the meaning of regs 10, 11 and 12 of the Levy Regulations.
In summary, levy is payable if and only if, at a site during a return period, waste received at the site was accepted for burial, and waste was disposed of to landfill.
The arguments
The Government Parties alleged, in effect, that:[78]
(1) all of the materials which were deposited and compacted in the voids at the sites between 1 July 2008 and 30 September 2014 were waste;
(2)all of the materials deposited and compacted in the voids at the sites between 1 July 2008 and 30 September 2014 were 'accepted for burial' within the meaning of Category 63 in sch 1 to the EP Regulations;
(3)at all relevant times, Eclipse's sites were 'prescribed premises' specified in Category 63 of the EP Regulations and were 'licensed landfills' within the meaning of the Levy Regulations;
(4)Eclipse failed to comply with reg 10(6) of the Levy Regulations in respect of each site for each relevant return period from 1 July 2008 to 31 December 2011;
(5)Eclipse was liable to pay levy on the volume of waste disposed of to landfill at the sites between 1 July 2008 and 31 December 2011 as estimated by the CEO;
(6) the levy is not an excise duty; and
(7)the CEO was authorised to call on Eclipse's bank guarantee in partial discharge of the amount of levy owing for the return period 1 July to 30 September 2008.
[78] Primary decision [524].
Eclipse argued that for one or more of the following reasons it was not liable to pay levy:[79]
(1)the materials it received from third parties were not waste;
(2)if they were, Eclipse did not accept them for burial; and
(3) the materials that Eclipse deposited and compacted in the void were not waste disposed of to landfill.
[79] Primary decision [3].
Alternatively, Eclipse submitted that if it were otherwise liable to pay levy in relation to the three sites, or some of them, the legislative regime imposing the levy is unconstitutional because, on one or other of the following three bases, it amounts to a duty of excise:[80]
(1)the levy is a tax on the materials received by Eclipse, which were a valuable commodity when in Eclipse's hands;
(2) the levy is a tax in respect of products that are made by Eclipse when it removes compacted materials and uses them to make soil products;
(3) the levy is a tax on or in respect of the sand and limestone quarried from one of the sites, in that the depositing and compacting of materials constitutes necessary rehabilitation of the quarried area.
The issues
[80] Primary decision [3].
The judge summarised the issues in the primary proceedings as follows.[81]
For the first part of the Relevant Period (1 July 2008 until 31 December 2011) in which the CEO made estimates
[81] Primary decision [526] ‑ [532].
The first issue was whether, for each return period at each site, some waste was received and accepted for burial. If not, Eclipse would succeed. If so, each site was a category 63 licensed landfill, and the second issue would arise for determination.
The second issue was whether Eclipse failed to comply with reg 10(6) of the Levy Regulations. If that were established, the CEO's power to make an estimate was enlivened. If not, the Government Parties' claims for the estimated amounts would fail.
The third issue was whether, for each return period, the estimate made by the CEO was valid.
For the return periods from 1 January 2012 to 30 September 2014
The judge summarised the issues as follows:
(1) In each return period at each site, was some waste received and accepted for burial?
(2) Had Eclipse established that no waste was disposed of to landfill during this part of the Relevant Period?
(3) Should it be declared that, insofar as they comprised Natural Earth Material and Construction and Demolition Material, alternatively insofar as they comprised Natural Earth Material, the materials deposited by Eclipse in the void on each site during the Relevant Period were not waste and, further or alternatively, were not disposed of to landfill?
The entirety of the Relevant Period
His Honour noted that over the entirety of the Relevant Period, there was an issue as to whether the levy regime is invalid as an excise. This issue was only to be determined if and to the extent that the levy is (otherwise) payable.
The judge's conclusions as to the proper construction of the statutory instruments
The judge found in favour of the Government Parties. In relation to the word 'waste' in the relevant legislative context, his Honour said:[82]
The parties' written submissions referred to many cases decided in other jurisdictions relating to legislation concerning waste. In the end I think both parties agreed that, given the markedly different legislative frameworks, the decisions from other jurisdictions are of quite limited assistance. Having read all of the cases referred to by the parties, that is my view.
In my view, the ordinary meaning of the word waste, in the Levy Regulations, and in its context in category 63 of sch 1 to the EP Regulations, is unwanted or excess material, viewed from the perspective of its source. In my view, an apposite dictionary definition of waste is 'anything left over or superfluous, as excess material, by-products, etc, not of use for work in hand'…
Eclipse accepts that, in this context, 'waste' bears its ordinary meaning of unwanted or excess material.
Eclipse submits that whether material is 'waste' accepted for burial is determined by whether the material is unwanted or excess material in the hands of, or from the perspective of, the party receiving it. On Eclipse's construction, that will be so if and only if the party receiving the material receives it to deal with as waste. The position will be otherwise if the party receives it to be used as something other than waste, including by recycling, re-using or reprocessing it. For example, the party will not accept waste for burial if they receive material to use it as fill.
For the reasons that follow, I do not accept these submissions. (footnotes omitted)
[82] Primary decision [555] - [559].
His Honour summarised his conclusions on the proper construction of the legislative levy regime as follows:[83]
[83] Primary decision [627].
(1)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.
(2)Clean fill, including sand and soil, and what Eclipse calls Natural Earth Material, received from a source for whom they are unwanted, are waste.
(3)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'.
(4)That applies equally to sand and soil.
(5)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, (perhaps) it has been substantially transformed.
(6)Any material, including sand or soil, clean fill or what Eclipse calls Natural Earth Material, that is placed into the ground and buried at a licensed landfill is 'waste disposed of to landfill'.
(7)The intention with which material is buried does not control or influence whether material is 'waste disposed of to landfill'.
Judge's conclusions as to the application of the facts to the levy regime properly construed
It followed from this construction of the legislative levy regime that Eclipse accepted waste for burial at each site during each return period in the Relevant Period.[84]
[84] Primary decision [629], [637].
The judge said that on his construction of the levy regime, in the context of 'waste received' and 'waste accepted for burial', any material received at premises that is unwanted by or excess to the needs of its source is waste.[85] His Honour said:[86]
Applying that construction of the ordinary meaning of waste, the material received by Eclipse at the Sites during each return period in the Relevant Period was, and certainly included, waste. As I understood it, Eclipse concedes that this is so.
[85] Primary decision [630].
[86] Primary decision [631].
The judge also reiterated[87] his findings, to the effect that:
(a)the parties supplying the materials to Eclipse at the sites did not want them, and evidently had no present use for them;
(b)Eclipse's executives said as much in their evidence;
(c)it is also clear from the nature and source of the materials that they were waste, in that the materials received were mostly the 'unwanted by‑products of, or unused or excess materials left over from, excavation, clearing, construction, demolition and other similar works at various other sites'; and
(d)the materials were not wanted for work being carried out at the source sites and had to be disposed of elsewhere, and that was reflected in the fact that those bringing the materials to the sites paid Eclipse to accept them.
[87] Primary decision [632].
His Honour said that that was sufficient to dispose of Eclipse's argument on 'waste received'.[88]
[88] Primary decision [633].
In relation to the waste being 'accepted for burial', his Honour said that, on the one hand, while some materials were not 'accepted for burial', such as materials used in the process of mulch and blended soil products, other materials were. In particular, the materials that were deposited into voids and compacted were 'accepted for burial'.[89] His Honour said:[90]
On my construction, material is accepted for burial if it is received with the intention that it will be or is likely to be buried; that is, put in the ground and covered with other material. On my construction, that applies equally to sand and soil and to what Eclipse calls Natural Earth Material.
[89] Primary decision [634] ‑ [640].
[90] Primary decision [636].
In relation to any proposed re‑mining of the material, his Honour observed that Eclipse's closing submissions did not refer to the re‑mining element of its case in the context of whether waste was 'accepted for burial'. His Honour nevertheless did not accept any contention by Eclipse that it did not accept materials for burial because it intended to deposit and compact them in the void so that they would be available for later extraction.[91] As a matter of fact (as noted earlier) his Honour found that, with respect to the Flynn Drive Site and the Wanneroo Road Site, Eclipse had not shown that it re‑mined materials deposited and compacted in the voids of those sites during the Relevant Period. Nor was his Honour satisfied that Eclipse deposited any of the material in those voids for the purpose of later extraction, or for the purpose of having the materials available for later extraction.[92]
[91] Primary decision [641].
[92] Primary decision [238] ‑ [240], [771].
In relation to the Abercrombie Road Site, his Honour had accepted that, in much of the return period from 1 July 2014 to 30 September 2014, Eclipse deposited the material in order to fill the voids, but also so that the deposited and compacted material would be available for re‑mining for use in the production of soil and sand products.[93] Nevertheless, his Honour said that even in relation to the Abercrombie Road Site:[94]
Materials received with the intention that they be buried are accepted for burial notwithstanding that the receiving party intends that, depending on future contingencies, the materials may be exhumed at a later stage.
[93] Primary decision [244] ‑ [247], [257].
[94] Primary decision [641].
The judge then turned to the question of whether the power of the CEO to estimate the volume of waste disposed of to landfill was enlivened. That turned on whether Eclipse failed to comply with reg 10(6) of the Levy Regulations.[95]
[95] Primary decision [643].
His Honour found, first, that insofar as Eclipse provided a survey report after the 28‑day deadline, the CEO's power to estimate arose because reg 10(6) required the material to be submitted within 28 days and Eclipse had failed to do that. His Honour noted that Eclipse did not contend to the contrary, nor did it make submissions directed to this category of estimates.[96]
[96] Primary decision [644] ‑ [645].
His Honour said that the issue between the parties as to Eclipse's compliance with reg 10(6) related to the estimates made by the CEO in circumstances where Eclipse had provided a survey report that related to only part of the active void at the Abercrombie Road Site and the Wanneroo Road Site. His Honour observed that (subject to an exception for the period 1 July to 30 September 2011) Eclipse had submitted volumetric surveys to DER which contained raw survey data for areas of the voids at the sites outside of the category 63 area, but had only reported the surveyor's calculation of the volume of material filled within the category 63 area. The Government Parties submitted that, in providing DER with survey reports limited to the category 63 area, Eclipse had failed to comply with reg 10(6). Eclipse's contention was to the effect that there was no waste disposed of to landfill, or at least no waste disposed of to landfill outside of the category 63 area, and that Eclipse had lodged a complying report in respect of the waste disposed of to landfill in the category 63 area. Eclipse conceded that if the court was satisfied that waste was disposed of to landfill outside of the category 63 area, then Eclipse did not comply with reg 10(6).[97]
[97] Primary decision [646] ‑ [650].
Eclipse's submission that no waste was disposed of to landfill was based, in effect, on contentions that the material deposited and compacted in the voids 'was a resource' and that it was not getting rid of the material, but was intending for it to be re‑mined. His Honour rejected each of these contentions.[98] He made reference to his reasons given in relation to the proper construction of the legislative regime and said, with respect to Eclipse's contention regarding re‑mining:[99]
Eclipse's second contention is founded in part on the construction it advances, and in part on the factual findings which it invites as to its intention to re-mine.
I do not accept Eclipse's submission that, in order for waste to be disposed of to landfill, the party said to be disposing of it must have intended to permanently get rid of it.
Material that is deposited and compacted with the intention that it might be later exhumed is nevertheless 'disposed of to landfill'. I construe the levy regime as meaning that whether waste is 'disposed of to landfill' is an objective question that is not governed by the intention of the licensee or occupier of the premises. For waste to be 'disposed of to landfill' it does not have to be permanently and immutably dealt with in that way.
Further and in any event, with the exception of the return period 1 July 2014 to 30 September 2014 for the Abercrombie Road Site, I have found that when Eclipse deposited and compacted material in the void at one of the Sites it did not do so with the intention or substantial purpose that it be available for re-use after re-mining.
[98] Primary decision [651] ‑ [654].
[99] Primary decision [655] ‑ [658].
His Honour also rejected Eclipse's alternative proposition that no waste was disposed of to landfill outside of the category 63 area insofar as Natural Earth Material and Construction and Demolition Material was put into the ground and covered with similar materials. His Honour rejected that contention, having regard to the proper construction of the levy regime.[100] His Honour reiterated[101] that on his construction:
(a)sand and soil, clean fill and what Eclipse calls Natural Earth Material are waste when received if they are unwanted by or in excess to the requirements of their source; and
(b)any such materials that are put into the ground and buried by the licensee of a licensed landfill will be waste disposed of to landfill.
[100] Primary decision [659], [661].
[101] Primary decision [660].
His Honour found that the material deposited and compacted in the area outside of the category 63 area was largely sand and soil, together with some construction and demolition rubble, that had been sent to Eclipse from excavation, cleaning, demolition or construction works at other sites.[102] His Honour observed:[103]
On Eclipse's case, only clean sand, soil and other Natural Earth Material or Construction and Demolition Material that, in all cases, is established as meeting EILs, and which Eclipse characterises as clean fill, was deposited into the Civil Works Area at the Abercrombie Road Site and the Wanneroo Road Site. The Government Parties submit that because what was deposited included building rubble such as broken concrete or bricks, it was not clean fill as defined in the Waste Definitions but, rather, was 'Type 1 inert waste'. I accept that this is so. But in any event, on my construction of the levy regime, whether the materials were clean fill or Type 1 inert waste makes no difference to whether they were 'waste disposed of to landfill'. On my construction, clean fill received from a source that does not want it which is then put into the ground and buried is waste disposed of to landfill. Accordingly, on Eclipse's case as to what occurred in the Civil Works Area, waste was disposed of to landfill.
For these reasons, I find that Eclipse disposed of waste to landfill outside of the Category 63 Area at the Abercrombie Road Site and the Wanneroo Road Site in each relevant return period, and that, accordingly, Eclipse did not comply with reg 10(2). (emphasis added)
[102] Primary decision [661].
[103] Primary decision [662] ‑ [663].
In relation to the question of whether the estimates made by the CEO were valid, Eclipse had contended that the CEO had misconstrued the levy regime. On the basis of his Honour's findings as to the proper construction of the levy regime, his Honour rejected that contention.[104]
[104] Primary decision [666].
His Honour also rejected any suggestion by Eclipse (to the extent that it was made), that the CEO's estimates were incorrect as a result of a failure to exclude what was said to be stockpiles.[105]
[105] Primary decision [667] ‑ [674].
With respect to the other issues in the primary proceedings, the judge rejected Eclipse's claims for declarations relating to the return periods from 1 January 2012.[106] His Honour also concluded that the waste levy was not invalid as an excise.
Legislative Regime[107]
Levy Act
[106] Primary decision [685].
[107] The following summary is, in general terms, taken from the judge's outline of the relevant parts of the legislation. The Government Parties accepted the judge's summary of the relevant legislative provisions as correct, and Eclipse did not challenge this summary in its grounds of appeal.
Section 4(1) and (2) of the Levy Act provides:
4.Levy may be prescribed
(1)The Governor may, on the recommendation of the Minister, make regulations under the Waste Avoidance and Resource Recovery Act 2007 prescribing an amount by way of levy that is to be payable in respect of waste received at disposal premises.
…
(2)The regulations may -
(a)provide that the amount by way of levy is to be payable in all cases, in all cases subject to specified exceptions or in any specified case or class of case; and
(b)prescribe different amounts by way of levy that are payable in respect of different cases or classes of case; and
(c)provide for the levy to be calculated on such basis, and in accordance with such factors, as are specified; and
(d)provide for the reimbursement of administrative costs incurred by the person, organisation or licensee collecting the levy.
Section 3 of the Levy Act defines 'disposal premises' as premises:
(a)which are used for the purpose of receiving waste; and
(b)in respect of which the occupier is required to hold a licence, whether or not such a licence is in force.
Section 5 imposes the levy through regulations. It provides:
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.
Section 6 identifies the person who is liable to pay levy imposed:
The holder of a licence in respect of disposal premises, or in the case of disposal premises in respect of which a licence is not in force, an occupier required under the EP Act to hold such licence in respect of the premises, is liable to pay the amount of any levy imposed in respect of waste received at the disposal premises. (emphasis added)
Levy Regulations
The Levy Regulations are made under the Waste Recovery Act by virtue of the Levy Act.[108]
[108] See s 4(1) of the Levy Act; s 96 and s 102 of the Waste Recovery Act and sch 3 of the Waste Recovery Act.
The Levy Regulations prescribe an amount to be paid in respect of waste received at 'landfill premises'. Subject to any exemption granted on application under reg 5, the Levy Regulations apply to, amongst other things:[109]
(a) all waste received at landfill premises in the metropolitan region on or after 1 July 2008; and
(b)all waste collected within the metropolitan region, irrespective of when it is collected, and received at landfill premises outside the metropolitan region on or after 1 July 2008.
[109] Levy Regulations reg 4.
'Landfill premises' is defined in reg 3 to mean:
(a)a licenced landfill; or
(b)premises that would, if the occupier of the premises held a licence in respect of the premises as required under the EP Act, be a licensed landfill.
A 'licensed landfill' is defined to mean premises specified in category 63, 64 or 65 of sch 1 to the EP Regulations in respect of which a licence is held. 'Licence' means a licence granted and in force under div 3 of pt V of the EP Act.[110]
[110] Levy Act s 3.
Regulation 5 sets out nine situations in which an application can be made for an exemption for waste received at a licensed landfill. These include for:
(a) uncontaminated soil or other clean fill that -
(i)is, or is to be, used after the completion of landfill operations to cover, to a depth of up to 500 mm, waste disposed of on the premises; and
(ii)was accepted by the licensee at no charge;
(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.
Regulations 10, 11 and 12 prescribe, amongst other things, the basis on which to calculate 'the amount by way of levy that is payable in respect of waste to which these regulations apply that is received at a category 63 landfill premises during a return period'.[111] They are in the following terms:
[111] Levy Regulations, reg 12.
10.Volume of waste - category 63 landfills
(1)In this regulation -
surveyor means -
(a)a licensed surveyor as defined in the Licensed Surveyors Act 1909 section 3(1); or
(b)a person who is, or is eligible to be, a member of -
(i)the Institution of Surveyors, Australia; or
(ii)the Spatial Sciences Institute.
(2)The licensee of a category 63 licensed landfill must, in accordance with subregulations (3) and (4) -
(a) cause a survey of the premises to be conducted by a surveyor for the purpose of establishing a base from which the volume of waste subsequently disposed of to landfill on the premises can be measured (the baseline survey); and
(b)lodge with the CEO a report of that survey prepared by the surveyor (the baseline report).
Penalty: a fine of $10 000.
(3) The baseline survey must be conducted -
(a) after the licence is issued; and
(b) not more than 14 days before the licensee commences accepting waste for disposal to landfill on the premises.
(4) The baseline report must be lodged within 14 days after the licensee commences accepting waste for disposal to landfill on the premises.
(5) Subject to any exemption granted on application under regulation 5(3), after the end of a return period the licensee of a category 63 licensed landfill must cause a survey of the premises to be conducted by a surveyor for the purpose of calculating the volume of waste disposed of to landfill during that return period (a quarterly survey).
(6) The licensee must lodge a report on a quarterly survey, prepared by the surveyor, with the return lodged under the Waste Avoidanceand Resource Recovery Regulations 2008 regulation 18 for that return period.
Penalty: a fine of $10 000.
(7) The report referred to in subregulation (6) must include the 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 or the estimated base established under regulation 11(1).
(8) The volume of waste so calculated by the surveyor is to be the volume used for the purposes of determining the amount of the levy under regulation 12.
11.CEO may make estimates if survey not conducted or category 63 premises not licensed
(1) If the licensee of a category 63 licensed landfill fails to comply with regulation 10(2) the CEO may establish an estimated base from which the volume of waste subsequently disposed of to landfill on the premises can be measured.
(2) If the licensee of a category 63 licensed landfill fails to comply with regulation 10(6) in respect of a return period the CEO may estimate the number of cubic metres of waste disposed of to landfill on the premises during the return period.
(3) The CEO must give written notice to the licensee of any estimated base established under subregulation (1) or any estimation made under subregulation (2).
(4) If waste is received at premises -
(a) in respect of which the occupier does not hold a licence as required under the EP Act; and
(b) that would, if the occupier of the premises held a licence as required under the EP Act, be a category 63 licensed landfill,
the CEO may estimate the number of cubic metres of waste disposed of to landfill on the premises during any return period, and the estimate is to be the number that is used for the purpose of determining the amount of the levy under regulation 12.
(5) For the purposes of this regulation the CEO may cause a survey of the kind referred to in regulation 10(2)(a) or (5) to be conducted in respect of the licensed landfill.
(6) The costs incurred by the CEO under subregulation (1), (2) or (4) for the purpose of determining the amount of levy payable by a person under regulation 12 may be included in the amount of levy payable by that person and, if so included, are recoverable accordingly.
(7) The CEO may call on or use the financial assurance provided by the licensee under the Waste Avoidance and Resource RecoveryRegulations 2008 regulation 15 to cover any costs incurred under subregulation (1) or (2) that are included in the amount of levy payable by a person.
12.Amount of levy
(1) The amount by way of levy that is payable in respect of waste to which these regulations apply that is received at a category 63 landfill premises during a return period is the amount (in dollars) equal to L in the formula -
L = (V x R) - S
where -
V is the number of cubic metres of waste to which these regulations apply received at the landfill premises during the return period determined in accordance with regulation 10 or estimated under regulation 11(2) or (4); and
R is, if the first day of the return period is -
(a) before 1 January 2010 - $3;
(b) on or after 1 January 2010 and before 1 January 2015 - $12;
(c) on or after 1 January 2015 and before 30 June 2016 - $60;
(d) on or after 1 July 2016 and before 30 June 2017 - $75;
(e) on or after 1 July 2017 and before 30 June 2018 - $90;
(f) on or after 1 July 2018 and before 30 June 2019 - $105;
(g) on or after 1 July 2019 - $105; and
S is -
(a) in the case of licensed landfill premises, the lesser of -
(i) the cost incurred by the licensee in complying with regulation 10(5) and (6) in respect of the return period; and
(ii) $2 000;
and
(b) in any other case - nil.
(2) The amount by way of levy that is payable in respect of waste to which these regulations apply that is received at a category 64 or 65 landfill premises during a return period is the amount (in dollars) equal to L in the formula -
L = (W x 92%) x R
where -
W is the number of tonnes of waste to which these regulations apply received at the landfill premises during the return period determined in accordance with regulation 8 or 9; and
R is, if the first day of the return period is -
(a) before 1 July 2009 - $7;
(b) on or after 1 July 2009 and before 1 January 2010 - $8;
(c) on or after 1 January 2010 and before 1 January 2015 - $28;
(d) on or after 1 January 2015 and before 30 June 2016 - $55;
(e) on or after 1 July 2016 and before 30 June 2017 - $60;
(f) on or after 1 July 2017 and before 30 June 2018 - $65;
(g) on or after 1 July 2018 and before 30 June 2019 - $70;
(h) on or after 1 July 2019 - $70.
Waste Recovery Act and Waste Recovery Regulations
The Waste Recovery Act and Waste Recovery Regulations, in effect, provide for when and in what manner a levy imposed under the Levy Act is due and payable. The objects of the Waste Recovery Act, as set out in s 5(1), are as follows:
(1) The primary objects of this Act are to contribute to sustainability and the protection of human health and the environment, in Western Australia and the move towards a waste‑free society by -
(a) promoting the most efficient use of resources, including resource recovery and waste avoidance; and
(b)reducing environmental harm, including pollution through waste; and
(c)the consideration of resource management options against the following hierarchy -
(i)avoidance of unnecessary resource consumption;
(ii)resource recovery (including reuse, reprocessing, recycling and energy recovery);
(iii)disposal.
Section 5(2) of the Waste Recovery Act provides that the principles set out in s 4A of the EP Act apply in relation to the objects of the Waste Recovery Act. Section 4A of the EP Act includes, relevantly, principles 4 and 5.
Principle 4 is 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 and 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.
Principle 5 is the principle of waste minimisation. It is that '[a]ll reasonable and practicable measures should be taken to minimise the generation of waste and its discharge into the environment'.
Section 3 of the Waste Recovery Act provides that 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.
A definition of waste in substantively the same terms is included in s 3 of the EP Act.
Section 3(2) of the Waste Recovery Act provides that if a term has a meaning in the EP Act, it has the same meaning in the Waste Recovery Act unless the contrary intention appears in the Waste Recovery Act.
Section 3(1) of the Waste Recovery Act provides that 'levy' means a levy imposed under the Levy Act.
Section 73(1) of the Waste Recovery Act provides that a 'levy is due and payable at such time or times, and in such manner, as is prescribed by the regulations'.
Regulation 14(1) of the Waste Recovery Regulations sets the return periods in which levy is payable each year as 1 July to 30 September; 1 October to 31 December; 1 January to 31 March; and 1 April to 30 June.
Regulation 17 of the Waste Recovery Regulations requires that, upon receiving waste at a category 63 licensed landfill, the licensee make a record showing, among other things, the volume of the waste disposed of to landfill in the premises calculated in accordance with regs 10 or 11 of the Levy Regulations.
Regulation 18(2) of the Waste Recovery Regulations requires a licensee of a licensed landfill to lodge a return in the approved form in respect of each return period setting out details of waste received, completed on the basis of the details entered in the records referred to in reg 17 and any estimates made under regs 9 or 11 of the Levy Regulations. The return must be accompanied by a remittance for the amount of levy payable on the waste to which that return relates.[112]
The EP Act and EP Regulations
[112] Waste Recovery Regulations, reg 18(3).
As noted earlier, by s 4A of the EP Act, the object of the EP Act is to protect the environment, having regard to specified principles, including principles 4 and 5 referred to in [89] ‑ [90] above.
Sections 56, 57, 62 and 62A of the EP Act, within pt V of the EP Act, provide relevantly as follows:
56. Occupiers of prescribed premises to be licensed for emissions etc.
(1)Subject to this Act, the occupier of any prescribed premises who -
(a)causes or increases, or permits to be caused or increased, an emission; or
(b)alters or permits to be altered the nature of the waste, noise, odour or electromagnetic radiation emitted,
from the prescribed premises commits an offence unless he is the holder of a licence issued in respect of the prescribed premises and so causes, increases, permits or alters in accordance with any conditions to which that licence is subject.
(2)Subsection (1) does not apply if the emission is caused, increased or altered -
(a)as a result of anything done in accordance with a works approval; and
(b)while the works approval is in force.
57. Licences, applying for, granting, refusing etc.
(1)An application for a licence shall be -
(a)made in the form and in the manner approved by the CEO; and
(b)accompanied by such fee as is prescribed by or determined under the regulations; and
(c)supported by such plans, specifications and other documents and information, including a summary thereof, as the CEO requires.
…
(3)The CEO shall, after having taken into account any comments received from any public authority or person from which or whom comments were sought under subsection (2)(b) or (2a) and subject to section 60 -
(a)in the case of an application for a licence made under subsection (1) relating to a matter in respect of which a works approval has not been granted and subject to subsection (4) -
(i)grant a licence subject to such of the conditions referred to in section 62 as the CEO specifies in the licence; or
(ii)refuse to grant the licence[.]
…
62.Works approval and licence conditions
(1)A works approval or licence may be granted subject to such conditions as the CEO considers to be necessary or convenient for the purposes of this Act relating to the prevention, control, abatement or mitigation of pollution or environmental harm.
(2)Section 62A sets out some kinds of conditions that may be attached to a works approval or licence and further kinds of conditions may be prescribed, but nothing in that section or the regulations prevents other conditions from being attached.
(3)Subject to section 60 a condition is not to be inconsistent with an approved policy or a prescribed standard.
62A.Some kinds of conditions
(1)The following list sets out things that the occupier of premises to which a works approval or licence relates can be required to do (at the expense of the occupier) under conditions attached to the works approval or licence
…
(j)dispose of waste in a specified manner;
(k)if practicable -
(i)reuse waste wholly or in part; or
(ii)make waste available for reuse by another person[.]
Section 3(1) of the EP Act contains definitions of 'emission', 'waste' and 'discharge'. The word 'emission' is defined to mean:
(a)discharge of waste; or
(b)emission of noise, odour or electromagnetic radiation; or
(c)transmission of electromagnetic radiation. (emphasis added)
The word 'waste' is defined as:
Waste includes matter -
(a)whether liquid, solid, gaseous or radioactive and whether useful or useless, which is discharged into the environment; or
(b)prescribed to be waste. (emphasis added)
The word 'discharge' in relation to 'waste' includes 'deposit it' or 'cause or permit it to be … deposited' (emphasis added).
Furthermore, s 3(2aa) of the EP Act provides that:
(2aa)A reference in this Act to the discharge, emission or transmission of anything (whether accompanied by the expression 'into the environment' or not) -
(a)is a reference to discharge, emission or transmission onto or into land, water, the atmosphere or living things; and
(b)in relation to discharge, emission or transmission from premises, includes a reference to discharge, emission or transmission onto or into land, water, the atmosphere or living things on, in, under, above or part of the premises.
'Prescribed premises' are defined in s 3(1) of the EP Act as premises prescribed for the purposes of pt V. By s 123, read with sch 2 (cl 26), of the EP Act, the Governor may make regulations prescribing any premises or class of premises as prescribed premises for the purposes of pt V.
Regulation 5 of the EP Regulations provides that the premises specified in sch 1 are prescribed premises for the purposes of pt V of the EP Act. Schedule 1 of the EP Regulations sets out numbered categories of premises. Each category is identified by reference to the activities carried out on the premises and, in some cases, by reference to the 'production or design capacity' of the premises. Having regard to the definitions in the EP Act and the EP Regulations, 'prescribed premises' means premises on or at which any prescribed activity (ie, one coming within the description and production/design capacity in sch 1 of the EP Regulations) is conducted.[113]
[113] Eclipse Resources Pty Ltd v Chief Executive Officer, Department of Environment and Conservation [2013] WASCA 152; (2013) 45 WAR 353, [63].
In sch 1 to the EP Regulations, category 63, which is said to have a 'production or design capacity' of '500 tonnes or more per year', has the following as its 'description of category':
Class I inert landfill site: premises on which waste (as determined by reference to the waste type set out in the document entitled 'Landfill Waste Classification and Waste Definitions 1996' published by the Chief Executive Officer and as amended from time to time) is accepted for burial. (emphasis added)
Other descriptions of category include:
61ASolid waste facility: premises (other than premises within category 67A) on which solid waste produced on other premises is stored, reprocessed, treated or discharged onto land.
62Solid waste depot: premises on which waste is stored, or sorted, pending final disposal or re-use.
…
64Class II or III putrescible landfill site: premises on which waste (as determined by reference to the waste type set out in the document entitled 'Landfill Waste Classification and Waste Definitions 1996' published by the Chief Executive Officer and as amended from time to time) is accepted for burial.
65Class IV secure landfill site: premises on which waste (as determined by reference to the waste type set out in the document entitled 'Landfill Waste Classification and Waste Definitions 1996' published by the Chief Executive Officer and as amended from time to time) is accepted for burial.
66Class V intractable landfill site: premises on which waste (as determined by reference to the waste type set out in the document entitled 'Landfill Waste Classification and Waste Definitions 1996' published by the Chief Executive Officer and as amended from time to time) is accepted for burial.
…
67ACompost manufacturing and soil blending: premises on which organic material (excluding silage) or waste is stored pending processing, mixing, drying or composting to produce commercial quantities of compost or blended soils.
It was common ground at first instance that a particular site may be prescribed premises under more than one category.[114] Indeed, various other licenses for different categories were held over the sites during the Relevant Period.[115]
[114] Primary decision [499].
[115] See, for example, primary decision [307].
Landfill Waste Classification and Waste Definitions 1996
As noted above, category 63 in sch 1 to the EP Regulations referred to 'Landfill Waste Classification and Waste Definitions 1996' (Waste Definitions) published by the CEO. The Waste Definitions are also referred to in the descriptions for categories 64 ‑ 66. His Honour noted the following:[116]
[116] Primary decision [501] ‑ [509].
The Waste Definitions define and describe the types of waste that each class of landfill site can accept. Table 1 sets out, for each Landfill Class (also identified by reference to categories 63 - 66 of sch 1 to the EP Regulations), a common name for the class and the waste types permitted for disposal at it. Table 1 is in the following terms:
LANDFILL CLASS
COMMON NAME
WASTE PERMITTED FOR DISPOSAL
Class I (Prescribed Premises Category 63)
Inert Landfill
•Clean fill
•Type 1 Inert Waste
•Contaminated solid wastes meeting waste acceptance criteria specified for Class I landfills (possibly with specific licence conditions)
•Type 2 Inert Waste (with specific licence conditions)
•Type 3 Inert Waste (subject to DEP approval
•Type 1 Special Waste
Class II (Prescribed Premises Category 64 or 89)
Putrescible Landfill
•Clean fill
•Type 1 Inert Waste
•Putrescible Wastes
•Contaminated solid waste meeting waste acceptance criteria specified for Class II landfills (possibly with specific licence conditions)
•Type 2 Inert Wastes (with specific licence conditions)
•Type 1 and Type 2 Special Wastes (for registered sites as approved under the Controlled Waste Regulations)
Class III (Prescribed Premises Category 64)
Putrescible Landfill
•Clean Fill
•Type 1 Inert Waste
•Putrescible Wastes
•Contaminated solid waste meeting waste acceptance criteria specified for Class II or Class III landfills (possibly with specific licence conditions)
•Type 2 Inert Wastes (with specific licence conditions)
•Type 1 and Type 2 Special Wastes
LANDFILL CLASS
COMMON NAME
WASTE PERMITTED FOR DISPOSAL
Class IV (Prescribed Premises Category 65)
Secure Landfill
•Clean Fill
•Type 1 Inert Waste
•Contaminated solid waste meeting criteria specified for Class II, Class III or Class IV landfills (possibly with specific licence conditions)
•Type 2 Inert Wastes (with specific licence conditions)
•Type 1 and Type 2 Special Wastes
Class V (Prescribed Premises Category 66)
Intractable Landfill
•Intractable and other wastes in accordance with the approvals for the site
Note: Materials used for rehabilitation and final landforming (including Class I landfills) need not be wastes, and may include clean fill and soil mixes incorporating mulches, grass sods, peat and biosolids. Rehabilitation of landfills should be conducted primarily with sand and loam to a depth generally not exceeding two metres and may involve the use of neutralised peat or acid sulfate soils or other organic matter to aid soil structure, but not as the main ingredients.
Each of the waste types set out in the table is a defined term.
'Clean fill' is defined to mean:
Material that will have no harmful effects on the environment and which consists of rocks or soil arising from the excavation of undisturbed material.
For material not from a clean excavation, it must be validated to have contaminants below relevant ecological investigation levels (as defined in the document Assessment Levels for Soil, Sediment and Water, Department of Environment, 2003).
'Inert Waste Type 1' is defined to mean:
Non-hazardous, non-biodegradable (half-life greater than 2 years) wastes containing contaminant concentrations less than Class I landfill acceptance criteria but excluding paper and cardboard (paper and cardboard are biodegradable materials and are therefore considered as putrescible waste), or materials that require treatment to render them inert (eg. peat, acid sulfate soils).
'Inert Waste Type 2' is defined to mean:
Waste consisting of stable non-biodegradable organic materials such as tyres and plastics which require special management to reduce the potential for fires.
'Inert Waste Type 3' is defined to mean:
Waste material from DEP licensed secondary waste treatment plants, subject to appropriate assessment and approval of that waste and the specified inert landfill.
'Special Waste Type 1' is defined to mean 'Waste which includes asbestos and asbestos cement products'.
In defining 'Waste', the following is said:
For the purpose of these guidelines waste may mean one or more of the following:
•any substance that is discarded, emitted or deposited in the environment in such volume, constituency or manner as to cause an alteration in the environment;
•any discarded, rejected, unwanted, surplus or abandoned substance;
•any otherwise discarded, rejected, unwanted, surplus or abandoned substance intended for sale or for recycling, reprocessing, recovery, or purification by a separate operation from that which produced the substance;
•any substance described in regulations under the Environmental Protection Act 1986 as waste.
Table 2 sets out a description (from the definition) and examples of various waste types. If waste can be classified according to table 2, no more detailed assessment is required. Thus, the examples in table 2 are intended to have operative effect. Table 2 includes the following:
WASTE TYPE
DESCRIPTION
Clean Fill
Material that will have no harmful effects on the environment and which consists of rocks or soil arising from the excavation of undisturbed material
Examples:
Virgin excavated natural material (e.g. clay, gravel, sand, soil and rock), or such material that is mixed with:
•waste that has been excavated from areas that are not contaminated as a result of industrial, commercial, mining or agricultural activities, with manufactured chemicals, and does not contain sulfidic ores or soils (e.g. acid-sulfate soils and peats), or
•Materials not from a 'clean excavation' that have been validated to meet relevant ecological investigation levels.
Inert
Wastes that are largely non-biodegradable, non-flammable and not chemically reactive. Inert wastes are subdivided into three separate classes:
•Type 1 - Inert Wastes are listed below and contain contaminants in concentrations less than the specified criteria.
•Type 2 - Wastes consisting of non-biodegradable organic materials such as tyres and plastics, which are flammable and require special management to reduce the potential for fires.
•Type 3 - Waste material from DEP licensed secondary waste treatment plants, subject to appropriate assessment and approval of that waste and the specified landfill.
Examples of Type 1 inert wastes:
•Building and demolition waste (e.g. bricks, concrete and associated unavoidable small quantities of paper, plastics, glass, metal and timer1 [sic, timber] that should be recovered), being material resulting from the demolition, erection, construction, refurbishment or alteration of buildings or from the construction, repair or alteration of infrastructure-type development such as roads, bridges, dams, tunnels, railways, and airports, and which is not mixed with any other type of waste (specifically green and food waste), and does not contain asbestos.
•Asphalt waste (e.g. resulting from road construction and waterproofing works).
•Biosolids categorised for unrestricted use.
•Casting sand (that does not contain leachable components which would require disposal in a higher class of landfill.
•Blasting sand or garnet (including that used for stripping tributyl tin - containing paints).
Examples of Type 2 inert wastes:
Used, rejected or unwanted tyres (included shredded tyres or tyre pieces).
Notes
1. Includes treated timber such as copper chrome arsenate (CCA), high temperature creosote (HTC), pigment emulsified creosote (PEC) and light organic solvent preservative (LSOP) treated timber.
It is convenient at this point to refer to the particular cases on which Eclipse relies. In M R Hornibrook, the appellant (MRH) was a builder and contractor. It constructed a bridge under a contract with a company (highway company) which held a franchise for the erection of the bridge. The bridge was built on reinforced concrete piles, driven into the seabed. The concrete piles were manufactured by MRH specifically for this particular job. Concrete piles were not standardised or manufactured for sale anywhere in Australia. The concrete piles were not sold as piles by MRH to the highway company. There was, in fact, no sale of the piles by MRH to any person whereby that person became the owner of the piles before they lost their character as chattels and became part of the bridge. The question was whether the concrete piles were 'goods' within the meaning of the Sales Tax Assessment Act (No 1)1930 - 1936 (Cth). Even though the relevant contract was not a contract for the sale of goods because there was no sale of the piles by MRH to any person, there was a deeming provision to the effect that a person was deemed to have sold goods if, in the performance of some contract under which they are entitled to receive valuable consideration, they supply 'goods the property in which … passes … to some other person'.[282] Latham CJ and Rich J held that the deeming provision applied. Latham CJ said:[283]
In my opinion the commissioner is right in his contention that this provision applies to the present case. The appellant company, in the performance of a contract for building a bridge under which contract it was entitled to receive and doubtless has received valuable consideration, has supplied goods, namely, reinforced concrete piles. Such piles are plainly manufactured articles. They are chattels. They were intended to be incorporated in a structure and were so incorporated. They lost their identity as goods in that structure. But this fact does not prevent the piles from being goods any more than it prevents bricks or stones or nuts and bolts from being goods. The fact that the goods were specially manufactured and designed for a particular purpose cannot be held to deprive them of the character of goods. (emphasis added)
[282] M R Hornibrook (278 - 279).
[283] M R Hornibrook (279).
In M R Hornibrook, Starke J (with whom Rich J also agreed on this point) held that the concrete piles were 'goods' within the meaning of the relevant statute on another basis. This was that the sales tax applied where 'goods' were manufactured in Australia by a taxpayer and 'applied to his own use'.[284] In relation to whether the piles were 'goods', Starke J said:[285]
In my opinion the piles constructed by the appellant for use in the bridge were goods manufactured or produced by it within the meaning of the Sales Tax Assessment Act. They were tangible articles produced by the application of physical labour or mechanical power and distinct from the ingredients composing them. The piles were in truth articles or goods specially made and supplied for the construction of the bridge as distinguished from services rendered. (emphasis added)
[284] M R Hornibrook (283).
[285] M R Hornibrook (284).
In Matthews, a Victorian statute provided for the appointment of marketing boards, which were authorised to make levies on producers. The Chicory Marketing Board, appointed under the Act, levied the producers of chicory at the rate of £1 per half acre of land planted with chicory. A majority of the High Court (Rich, Starke and Dixon JJ) held that it was a tax on the production of chicory, which was a commodity or good, and thus an excise. Rich J observed that 'planting chicory is an essential step in its production'.[286] Starke J reasoned to similar effect.[287] Dixon J said:[288]
The levy made by the Chicory Marketing Board is not ascertained by direct reference to the quantity or value of the chicory produced. It is imposed upon a producer, and presumably under the definition of that word he must actually obtain some chicory from the crop he has sown before he satisfies that description. But the basis of his assessment is not what he garners but what he plants. By calculating the levy upon the number of half acres which the producer plants with chicory the board makes it at least theoretically possible that owing to a failure of his crop the levy upon him has little or no relation to his actual production of chicory. But the basis adopted for the levy has a natural, although not a necessary, relation to the quantity of the commodity produced. Although many other factors go to the determination of the actual quantity of chicory produced, the area planted is, if not the chief, at all events a controlling element. By adopting area planted as the criterion of the amount of the levy upon each producer the board has taxed the production of the commodity as effectually as if it had selected, for instance, the weight of the chicory gathered in its raw state, the quantity treated or the gross returns. For it has placed upon an essential step in production, namely, planting, an impost computed quantitatively. There is no distinction of substance and scarcely any even of form between levying a tax upon the area planted and levying a tax upon the act of planting the area. The levy is directed to the normal case of a man reaping even as he sows. The fact that the tax would also fall upon a chicory farmer whose expectations are disappointed through some of the mischances of agriculture does not seem to me to make the levy any less a tax upon production. The natural or practical relations between manufacture or production and activities or conditions chosen as the tests or standards of liability to taxation depend, not upon logical definitions, but upon the actual course of industrial organisation and technique and of the productive arts.
If the word 'excise' received a meaning which confined its application to taxes the relation of which to the commodity concerned was of some narrow and strictly defined nature, as, for instance, by an arithmetical relation to quantity, it would not only miss the principle contained in the use of the word 'excise,' but it would expose the constitutional provision made by sec. 90 to evasion by easy subterfuges and the adoption of unreal distinctions. To be an excise the tax must be levied 'upon goods,' but those apparently simple words permit of much flexibility in application. The tax must bear a close relation to the production or manufacture, the sale or the consumption of goods and must be of such a nature as to affect them as the subjects of manufacture or production or as articles of commerce. (emphasis added)
[286] Matthews (281).
[287] Matthews (286).
[288] Matthews (303 - 304).
Mutual Pools concerned the construction and application of s 55 of the Constitution. Section 55 required laws imposing duties of excise to deal only with excise. The plaintiff's business included the construction of swimming pools in situ. The relevant sales tax legislation purported to impose a tax on swimming pools constructed in situ. The plaintiff alleged that this was a tax on land, and contravened s 55 of the Constitution. The plaintiff's claim was upheld. In addition to the passages referred to earlier, Mason CJ, Brennan and McHugh JJ also said:[289]
The case is to be distinguished from M R Hornibrook where the tax was levied on the piles before they lost their character as goods upon being incorporated into the structure of the bridge. Unlike the piles, the swimming pool has no separate existence as goods, independent of the realty of which it forms part from its earliest beginnings. A swimming pool manufactured away from the site of its permanent installation would, like the piles in M R Hornibrook, stand in a different position. Further, for the purpose of ascertaining whether a tax is an excise, the conclusion that completed swimming pools constructed in situ are not 'goods' does not mean that some of the constituent elements of a completed swimming pool, such as tiles, may not be characterised as goods (although presently exempted from sales tax by the Sales Tax (Exemptions and Classifications) Act 1935 (Cth), s 5 and Sched 1, Div XII). (emphasis added)
Disposition
[289] Mutual Pools (454 - 455).
Eclipse's arguments in relation to this ground have been set out in [270] to [276] above.
In relation to Eclipse's first argument, there is no doubt that the judge was cognisant of the passages in Mutual Pools upon which Eclipse relies in this appeal. His Honour referred to them.[290] There is nothing in his Honour's reasons to indicate that his Honour misunderstood the passages or their significance.
[290] Primary decision [709] - [710].
In relation to the 'particulars' to Eclipse's first argument (see [273] above), the following observations may be made. As to the first particular, the DER document relied on by Eclipse is headed 'Material guideline: Clean fill'.[291] It gives a 'product specification' for 'clean fill'. It defines 'clean fill' as:
[M]aterial that will have no harmful effect on the environment and consists of rocks or soil, or a combination of rocks and soil, which is extracted in a raw, unaltered form and which has not previously been used, consumed or subject to processing of any kind.
[291] GB 1220 - 1231.
The document provides that in order to meet the 'product specification' for 'clean fill' it must meet the above definition, as well as satisfy four other stipulated criteria. The document sets out how 'clean fill' may be 'generated' from certain waste material if, in effect, (1) the waste originates from specified sources, (2) it is subjected to certain checks both before and after receipt, (3) it is examined on site (including by spreading out the material over a sufficiently large area to enable a comprehensive visual and odour check to be undertaken) and (4) it is then stored in a manner that prevents it from being contaminated. It contemplates that 'clean fill' will be stockpiled, and may have an end use as fill. Eclipse has not shown how the 'clean fill' the subject of this document has any application to the particular waste materials which, on the judge's findings, it received and deposited into the voids at any of its sites (as to which, see [18] ‑ [29] and [32] ‑ [36] above). Further, even if 'clean fill' were itself a product which Eclipse buried on its sites, a levy on such buried material could not be said to be a tax in the production, manufacture, sale or distribution of a good. This point is discussed further below. The first particular does not assist Eclipse.
As to Eclipse's second particular, the following observations may be made. The materials which Eclipse used for the production of mulch and blended soils were not materials which were deposited into the voids and compacted.[292] Accordingly, those materials were not disposed of to landfill and the levy was not applicable to those materials. Nor, for that matter, were they even accepted for burial.[293] Further, on the unchallenged findings of fact, Eclipse did not, in any sense, 'produce' fill by disposing of waste to landfill. Whilst it used waste material as fill, it did not thereby 'produce' fill. Also, there is nothing in the judge's primary findings of fact which would warrant the inference that the materials in respect of which the levy is imposed were (in the language of Dawson, Toohey and Gaudron JJ in Mutual Pools) 'articles of commerce' or 'things' which 'may be the subject of trading or commercial transactions'.[294] Whilst Eclipse had a commercial use for the material it deposited into the voids, its usefulness was that it could and would be buried as landfill. Nothing in that use by Eclipse indicates that the material deposited in the voids and compacted and covered over, was a thing (let alone an 'article of commerce') which was, or was capable of being, the 'subject of trading or commercial transactions'.
[292] Primary decision [178].
[293] Primary decision [634].
[294] Mutual Pools (467).
Eclipse's contention that it used the material in the performance of its contractual and planning obligations to fill the voids on the sites, does not alter that conclusion. The judge's findings of fact in that regard are set out in [261] ‑ [264] above. The material was, as a matter of fact, used by Eclipse in the performance of its obligations, but the material itself was not the 'subject' of any trading or commercial transaction. The second particular does not assist Eclipse.
As to the third particular, even if there 'can' be a market for waste and waste 'can' be an article of commerce, or good, or product, the unchallenged findings are to the effect that there was no cogent evidence that there was a market for the particular types of waste materials buried by Eclipse, or that these materials were saleable. The third particular does not assist Eclipse.
The fourth particular alleges that at the Abercrombie Road Site, there was a direct connection between the placing of materials in the void and the production of the Quarry Materials (limestone and sand) and, hence, the filling of the void was a necessary step in the production of the Quarry Materials. As to that particular, it is pertinent to recall the following unchallenged findings of fact made by the judge.
The filling of the voids by Eclipse occurred in the following overall setting:
(a)the filling of the void with waste on the Abercrombie Road Site was proposed by Eclipse and was not imposed by the Town of Kwinana;[295]
(b)when planning approval was initially granted, the Town of Kwinana did not require that filling of the land take place, or that filling of the land with waste be carried out;[296]
(c)Eclipse had not demonstrated that there was no practical alternative to using waste as fill to rehabilitate the site following the mining of the Quarry Materials;[297]
(d)when Eclipse initially sought planning approval, it would have been open to the Town of Kwinana to approve alternative sequential uses for the quarry that did not involve a landfill and were consistent with the rural zoning of the land, and those alternative sequential uses could have been approved by the Town of Kwinana if a request for a rezoning amendment had been successful and finalised;[298] and
(e)during the Relevant Period, third party contractors extracted Quarry Materials from the Abercrombie Road Site and sold or used some of them for their own purposes.[299]
[295] Primary decision [788] - [790].
[296] Primary decision [791].
[297] Primary decision [793].
[298] Primary decision [794].
[299] Primary decision [63], [65].
In relation to whether and to what extent there was any economic connection between the filling of the voids by Eclipse and the production of the Quarry Materials at the Abercrombie Road Site, the judge found:[300]
(a)there was no evidence that the waste levy had been factored into the price of the Quarry Materials;
(b)moreover, Eclipse's records indicated that the total revenue at the Abercrombie Road Site from July 2008 to May 2012 from suppliers of the materials received by Eclipse was in the order of 100 times Eclipse's income from the sale of Quarry Materials during the Relevant Period; and
(c)any tendency for the levy to affect prices charged by Eclipse would seem to lie in the price to be charged by Eclipse for materials it received, and not in the price at which Quarry Materials were sold.
[300] Primary decision [796].
In relation to whether there was a temporal connection between the filling of the voids by Eclipse and the production of Quarry Materials at the Abercrombie Road Site, the judge found that:[301]
(a)At the Abercrombie Road Site, Eclipse is not under any obligation to fill the void at any particular rate.
(b)It is uncertain when the rehabilitation of the area mined during the Relevant Period will occur and it may be years away.
(c)It is unclear on the evidence when the mining occurred of the area that was filled during the Relevant Period. Some quarrying had occurred before Eclipse took possession of the site.
(d)There is no reason to suppose that filling of an area occurred soon after that area had been mined.
[301] Primary decision [798].
In the context of those findings, his Honour said:[302]
The transaction the subject of the levy is not proximate to the mining of the Quarry Materials. There is no necessary or close temporal connection between the mining of the Quarry Materials and the filling of the site, the latter being the conduct that attracts the levy …
In support of its submission that there is a close temporal connection between the mining of Quarry Materials and the filling of land, Eclipse points to Mr Delroy's evidence that 'the void is never allowed to get too big ... in case something goes wrong and you are left with a huge hole that you can't fill'. That evidence was given in relation to re-mining of materials deposited and compacted in the void, not in relation to the mining by Eclipse of Quarry Materials. In any event, the effect of that generalised statement is that, if an unidentified limit is reached, the need to ensure that the void is not too big may constrain the extent of mining. That evidence does not satisfy me that there is a close temporal connection between the mining of the Quarry Materials and the filling of the void. For the reasons already given, I am not satisfied that there is any such close connection. (footnotes omitted)
[302] Primary decision [798] - [799].
Eclipse has not demonstrated any error in the judge's reasoning referred to above. Even if there were some element of logic in Eclipse's submissions on this point, the argument is, on the facts, abstracted from commercial reality. As Dixon J observed in Matthews:[303]
The natural or practical relations between manufacture or production and activities or conditions chosen as the tests or standards of liability to taxation depend, not upon logical definitions, but upon the actual course of industrial organisation and technique and of the productive arts.
The fourth particular does not assist Eclipse.
[303] Matthews (303).
By the fifth particular of its first argument, Eclipse alleges that material placed in voids with the intention that it would be later extracted, indicates that this material was an input to produce products, and, hence, the material was a valuable commodity. His Honour dealt with this argument in relation to Eclipse's second contention at trial. His Honour's findings of fact with respect to re‑mining in general, and the use of peat in particular, are set out in [38] ‑ [42] above. The only site where there was any relevant intention to re‑mine was the Abercrombie Road Site in the period 1 July 2014 to 30 September 2014. In that regard, his Honour said:[304]
[I]n determining whether a tax is an excise, it is necessary to assess the nature and extent of the connection between the tax and the relevant step in the manufacture, production or distribution of the goods, in order to determine whether it is, in substance, a tax on that step. Factors relevant to that assessment may include the indirectness of the tax, its immediate entry into the cost of the goods, the proximity of the transaction it taxes to the relevant step in manufacture, production or distribution, and the form and content of the legislation imposing it.
None of these factors support the characterisation of the levy in its application to the Products as an excise. There is no evidence to suggest that the levy enters into the cost of the Products, directly or indirectly. Nor is there any natural tendency for that to occur. The transaction taxed by the levy is not proximate to the production of the Products. What is taxed by the levy is the disposal of waste to landfill. Nothing in the form or content of the levy regime favours its characterisation as an excise in relation to the Products.
To be an excise, a tax must bear a close relation to the production of goods. In this case, there is not a sufficiently close relation between the levy and the production of the Products to sustain a characterisation of the levy as, in substance, a tax on that production. When waste is disposed of to landfill, by definition it is not then being used to make Products. When the materials were put into the ground, that reflected Eclipse's decision that, from its perspective, that was the most efficient and productive use of them at that time. The materials were compacted on the basis that they would be 'treated as permanent fill and therefore placed and compacted accordingly'. Compacted materials may or may not be re-mined, depending on later economic circumstances and the materials available to Eclipse at later times. The existence of that possibility does not sustain a conclusion that the levy bears a close connection to the production of Products that may or may not, at some uncertain subsequent time, be produced from materials disposed of to landfill during the return period in question. The disposal of materials to landfill in these circumstances is not an essential or natural step in the production of the Products from that material.
There is no proportionate relationship between the amount of the levy and the amount or value of any of the Products. Nor is there any 'natural' connection between them. The position is quite the opposite. The levy only applies to what has been disposed of to landfill. By definition, in dealing with materials in that way, Eclipse decided that it did not then propose to use them to make Products, but rather to add them to the void. Waste received and not put in the void, but used to produce Products, is not disposed of to landfill and so is not subject to the levy.
Eclipse submits that there is a proportionality between the levy and the Products in that the amount of levy payable is directly related to the volume of materials available in the void, in the nature of a stockpile, for potential future production of Products. I do not accept that this is the right way to assess the nature and extent of the relationship between a tax and the goods a step in the production of which is said to be burdened by the tax. The enquiry is directed to the connection, if any, between the amount of levy payable and the quantity or value of the Products. There is no connection between the amount of levy payable and the quantity or value of any Products made during a given return period. Any connection is founded on what might happen in the future, not on what has happened during the return period in which the levy becomes payable.
Moreover, if and when Eclipse later decided to remove some material to use it to produce a relevant product, subject to a qualification, in the return period in which that occurred Eclipse would be given a credit in respect of that 'cutting' from the void. The qualification is that if during a return period, there was a net cut from a site, the return would be shown as zero, not a negative figure. Consequently, no credit would be given for re-mining if and to the extent it produced a net negative figure during the return period. During the Relevant Period, there was no return period for Abercrombie Road or Wanneroo Road in which there was a net cut. (footnotes omitted) (emphasis added)
[304] Primary decision [775] - [780].
Eclipse has not established any error in the judge's reasoning referred to above. Nor has it challenged the findings of fact italicised in the preceding quote. Again, Eclipse's observations do not accord with the commercial reality of the facts as found. The observations of Dixon J in Matthews, referred to in [293] above, apply equally to this point. The fifth particular does not assist Eclipse.
Nor does Eclipse's second argument have merit. Mutual Pools is authority for the proposition that, in this context, it may be useful, although not determinative, to consider whether the things described as goods or commodities, are saleable.[305] Each of the considerations which Eclipse alleges is irrelevant, is relevant to that question. Further, for the reasons given earlier, Eclipse's contractual and planning obligations provide no basis for characterising the materials buried by Eclipse as 'goods' within the meaning of s 90 of the Constitution.
[305] Mutual Pools (454).
Eclipse's third argument, in substance, is to the effect that the levy is imposed 'on materials received'[306] at the landfill premises, and not on waste disposed of to landfill. Eclipse contends, in effect, that as a matter of form and substance, the levy is imposed on all material received at landfill premises, and that the Levy Regulations thereby impose a tax on waste received, by measuring the quantity of waste disposed of to landfill, when the waste is disposed. That is not correct.
[306] Appellant's written submissions, par 109; WB 45.
Section 4(1) of the Levy Act does not in terms authorise a levy 'on' materials received at disposal premises. Section 4(1) empowers the Governor to prescribe an amount by way of levy 'in respect of' waste received at disposal premises. The phrase 'in respect of' gathers meaning from the context in which it appears;[307] nevertheless the phrase has a 'wide meaning'[308] and is of 'broad import'.[309] The scope of the power in s 4(1) and its intended operation is elaborated on in s 4(2) of the Levy Act. Section 4(2)(a) provides that the regulations may provide that the amount by way of levy is to be payable in all cases, in all cases subject to specified exceptions, or in any specified case or class of case. Section 4(2)(c) provides that the regulations may provide for the levy to be calculated on such basis, and in accordance with such factors, as are specified. The effect of s 5 of the Levy Act is that if an 'amount by way of levy' is prescribed pursuant to s 4, that levy is imposed.
[307] The Workers' Compensation Board of Queensland v Technical Products Proprietary Limited [1988] HCA 49; (1988) 165 CLR 642, 653 ‑ 654.
[308] The Workers' Compensation Board of Queensland (653); Technical Products Pty Limited v State Government Insurance Office (Queensland) [1989] HCA 24; (1989) 167 CLR 45, 47.
[309] O'Grady v The Northern Queensland Company Limited [1990] HCA 16; (1990) 169 CLR 356, 374 ‑ 375.
Whilst the Levy Regulations apply (subject to the specified exemption) to 'all waste received at landfill premises',[310] the amount by way of levy that is payable is calculated under reg 12 in relation to category 63 landfill premises by reference to the volume of waste received which is 'disposed of to landfill': reg 12(1) read with, in particular, reg 10(2), reg 10(5), reg 10(7), reg 10(8), and reg 11(1), reg 11(2) and reg 11(4). Regulation 5(1)(b) provides for an exemption to be granted by the CEO to a licensee for waste received at a licensed landfill in any return period 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' (emphasis added).
[310] Levy Regulations, reg 4(1).
Accordingly, on the proper construction of the Levy Regulations and the Levy Act, Eclipse's contention to the effect that the levy is imposed on all materials received at disposal premises, is incorrect. The levy is, in form and substance, imposed on waste received at landfill premises which is disposed of to landfill.
Eclipse sought to support its submission with the following suggested analogy:[311]
[S]uppose the State imposed a tax on all limestone (goods) delivered to building sites, and by regulation provided that the quantity of such limestone (and hence the tax) will be determined by measurement of limestone footings and walls, when constructed. The tax is not a 'land tax', but a tax on goods, even though the calculation of the tax is made when the building is constructed. The limestone is then part of the land; but the tax was imposed on the goods, before they became annexed. (original emphasis)
[311] Appellant's written submissions, par 110; WB 45 - 46.
The analogy suggested by Eclipse is no analogy at all. There is no equivalence between the limestone blocks delivered for use on building sites and the waste material received at Eclipse's sites for burial. Also, unlike the limestone blocks in the suggested analogy, the levy here is not imposed on all waste delivered to (or received at) the prescribed premises. By s 5 of the Levy Act, where 'an amount by way of levy is prescribed … that levy is imposed'. The amount by way of levy that is prescribed is payable only on the volume of waste received which is disposed of to landfill. It is not to the point to say that a tax on goods delivered may be calculated by reference to the extent to which the goods are applied or used (as in the limestone example), if there is no tax on goods delivered in the first place.
As noted earlier, Mutual Pools does not assist Eclipse in this aspect of its argument. M R Hornibrook held that the concrete piles were manufactured articles and thereby 'goods', and did not lose their character as goods merely because there was no sale prior to their incorporation into the bridge structure which formed part of the realty. The tax in that case was on the manufactured article prior to its supply or distribution to a third party. In this case, the levy does not apply to a manufactured article. The materials which were received and sent to landfill were not, on the judge's findings, shown to be a valuable commodity or article of commerce.[312] Further, even if the materials received at landfill premises could be characterised as 'goods', on the judge's findings of fact, referred to in [266] ‑ [267] and [289] ‑ [292] above, Eclipse has not established that the levy was a tax in the production, manufacture, sale or distribution of a good.
[312] Primary decision [747].
Nor is the judge's decision contrary to the decision in Matthews. The tax in Matthews was a tax on the planting of chicory. Chicory was a commodity and the planting of chicory was an essential step in the production of that commodity. Here, there is no commodity, no step in production, and no production, and, in any event, no tax on a commodity, or on a step in production, or on production.
Also, for the reasons given earlier, Circelli is of no assistance to Eclipse.
Ground 4 should be dismissed.
Conclusion
The appeals should be dismissed.
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