Henderson v Contaminated Sites Committee - [2025] WASC 123

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   HENDERSON -v- CONTAMINATED SITES COMMITTEE [2025] WASC 123
CORAM:   MUSIKANTH J
HEARD:   30 OCTOBER 2024
FINAL SUBMISSIONS FILED 11 DECEMBER 2024

DELIVERED          :   17 APRIL 2025
FILE NO/S:   GDA 9 of 2023
BETWEEN:   MURRAY LEONARD HENDERSON
First Appellant
JILLIAN MARIE HENDERSON
Second Appellant
AND
CONTAMINATED SITES COMMITTEE
First Respondent
VIVA ENERGY AUSTRALIA PTY LTD
Second Respondent
NYL PTY LTD
Third Respondent
DENISE MARGARET AMATO also known as MIDDLETON ROAD INVESTMENTS
ANGELO MARCO AMATO also known as MIDDLETON ROAD INVESTMENTS
LUCY EMMELINE MARCHESI also known as MIDDLETON ROAD INVESTMENTS
MARGHERITA AMATO also known as MIDDLETON ROAD INVESTMENTS
STEFANO AMATO also known as MIDDLETON ROAD INVESTMENTS
COLIN ROSS MORRISON also known as MIDDLETON ROAD INVESTMENTS
SHELLEY MAREE MORRISON also known as MIDDLETON ROAD INVESTMENTS
GREGORY JOHN MARCHESI also known as MIDDLETON ROAD INVESTMENTS
Fourth Respondents
SOUTHERN GUARDIANS PTY LTD
Fifth Respondent
TERRIE TINDALE AND THE ESTATE OF THE LATE BRUCE ALFRED TINDALE
Sixth Respondent
THE STATE OF WESTERN AUSTRALIA
Seventh Respondent

ON APPEAL FROM:
For File No:   GDA 9 of 2023
Jurisdiction              :   CONTAMINATED SITES COMMITTEE
Coram:   W DODGE (CHAIRMAN)
File Number            :   CSC 6 of 2018

Catchwords:

Administrative law - Appeal against further decision of Contaminated Sites Committee following remittal by Supreme Court - Whether Committee again erred in law - Statutory task of Committee and procedures to be applied (restatement of principles) - Standard of proof - Briginshaw standard - Requirement to provide adequate reasons

Legislation:

Contaminated Sites Act 2003 (WA)
Environmental Protection Act 1986 (WA)

Result:

Appeal and cross-appeal allowed
Decision remitted to Contaminated Sites Committee for reconsideration

Category: B

Representation:

Counsel:

First Appellant	:	Mr B J Tomasi
Second Appellant	:	Mr B J Tomasi
First Respondent	:	No Appearance
Second Respondent	:	Mr A C Willinge
Third Respondent	:	No Appearance
Fourth Respondents	:	Ms M Logie
Fifth Respondent	:	No Appearance
Sixth Respondent	:	No Appearance
Seventh Respondent	:	Mr J D Berson & Ms S C Price

Solicitors:

First Appellant	:	Lawton Gillon
Second Appellant	:	Lawton Gillon
First Respondent	:	State Solicitor's Office
Second Respondent	:	Ashurst Australia
Third Respondent	:	In Person
Fourth Respondents	:	Logie Legal
Fifth Respondent	:	In Person
Sixth Respondent	:	In Person
Seventh Respondent	:	State Solicitor's Office

Case(s) referred to in decision(s):

BP Australia Pty Ltd v Contaminated Sites Committee [2012] WASC 221
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Collector of Customs v Pressure Tankers Pty Ltd and Pozzolanic Enterprises Pty Ltd [1993] FCA 322; (1993) 43 FCR 280
EPA; ex parte Chapple (1995) 89 LGERA 310
Medical Board of Australia v Arunkalaivanan [2023] WASCA 117
Midcoast Petroleum Pty Ltd v Keldros Pty Ltd [2019] NSWSC 970
Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
National Australia Bank Ltd v Blacker [2000] FCA 1458; 104 FCR 288; 179 ALR 97
National Dairies WA Ltd v Commissioner of State Revenue [2001] WASCA 112
Paradis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361
Summit Rural (WA) Pty Ltd v Lenane Holdings Pty Ltd [2024] WASCA 122
Viva Energy Australia Pty Ltd v Contaminated Sites Committee [2018] WASC 89
Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375
Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480
Woollard v The Medical Board of Australia [2016] WASCA 151

Table of Contents

Introduction

Nature of the appeal proceedings

Extension of time

The CS Act and the EP Act

Grounds, issues to be decided

Approach when making decision as to liability for remediation

Allocation of responsibility to the Hendersons (Issue 1)

Responsibility to maintain fixtures as owner of Site

USTs as 'fixtures'

Omission causing or contributing to contamination

Conclusion - Issue 1

Allocation of responsibility to Viva Energy (Issue 2)

Effect of the Court's conclusions

Section 26 of the CS Act

Improper sealing of joints beneath bowsers as a contamination cause

Faulty installation of USTs as a contamination cause

Apportionment findings

Not considering pre-1988 UST installer(s)

No path of reasoning / inadequate reasons for apportionment

Conclusion and orders

MUSIKANTH J:

Introduction

These proceedings concern an appeal by the appellants (Hendersons) and an appeal by the second respondent (Viva Energy) against a decision by the Contaminated Sites Committee (Committee) determining responsibility for remediation of 29 Golf Links Road, Middleton Beach (Site) pursuant to s 36 of the Contaminated Sites Act2003 (WA) (CS Act).
A service station had operated on the Site since at least the 1950s.
The Hendersons were the registered proprietors of the Site from 7 December 1988 until 10 November 2005.
Underground storage tanks (USTs) had been installed at the Site before the Hendersons became its owners.
By February 1989, the Third Respondent, NYL Pty Ltd (NYL), as trustee for the Henderson Family Trust, started operating the service station on the Site.
In July 1991, NYL entered into a dealer Shell card agreement with Viva Energy, then known as the Shell Company of Australia Ltd (Shell). The agreement provided for the terms by which NYL was to sell Shell motor fuels, other Shell products and provide services at the Site.
Around the same time arrangements were also made to install a new fuel storage tank and bowsers on the Site.
Either Shell or Beasam Pty Ltd (Beasam) owned those bowsers.
On 22 June 1992, the Hendersons, as owners of the Site, entered into an agreement to lease the Site (Lease) to the sixth respondents (Tindales).
The Tindales then operated the service station on the Site for a continuous period of ten years.
By December 2004, the Site had closed, and all fuel had been removed.
In 2007, the Site was classified as 'possibly contaminated - investigation required' under s 13 of the CS Act.
In 2011, following its partial remediation in 2008, the Site was reclassified as 'contaminated - remediation required'.
Both classifications were based on the presence of hydrocarbons (such as from petrol or diesel) in the soil and the groundwater beneath the Site.
On 26 October 2023, the Committee issued the decision the subject of the current appeal proceedings (2023 determination).
By the 2023 determination, the Committee found that the substantial cause of contamination present at the Site was a combination of:
(a)faulty installation (prior to 1988) of USTs; and
(b)improper sealing (in about 1991) of joints beneath bowsers at the Site connecting the bowsers to underground pipe work;
resulting in leakage of hydrocarbons through gaps.
The Committee concluded that the leakage occurred at a constant rate from the respective times when the USTs and bowsers were installed until the time the Site was decommissioned.
The Committee relevantly determined that the Hendersons bore responsibility for the cost of remediation of the Site to the extent of 25%, and Viva Energy to the extent of 17.5%.
The Committee effectively found that: (a) the Hendersons bore such responsibility because they owned the USTs, as 'fixtures', and had failed to ensure the USTs were 'properly maintained';[1] and (b) Viva Energy bore such responsibility because either Viva Energy or Beasam owned the bowsers, and Viva Energy had failed to ensure the bowsers were 'correctly installed'.[2]
[1] 2023 determination [138(e)] - [138(g)], [139(f)] - [139(h)], [140(m)] - [140(o)], [141(h)] - [141(j)].
[2] 2023 determination [139(k)] - [139(l)], [140(h)] and [140(j)], [141(h)] and [141(j)].
The Committee concluded that both failures caused pollution in contravention of former s 49(1) and current s 49(3) of the Environmental Protection Act 1986 (WA) (EP Act), being 'an act done without lawful authority under s 25(3) of the CS Act'.
The Committee:
(1)Made its findings by reference to four periods: 7 December 1988 to 28 July 1991 (Period 1), 29 July 1991 to 31 May 1992 (Period 2), 1 June 1992 to 21 June 1992 (Period 3) and 22 June 1992 to 30 December 2004 (Period 4).
(2)Found that: (a) overall responsibility for remediation of the Site during Period 4 equated to 97%; (b) overall responsibility for remediation during Period 2 equated to only 3%; and (c) 'no significant contamination' of the Site had occurred during either Period 1 or Period 3.
(3)Also made findings as to responsibility for the cost of remediation against the State, NYL and the Tindales.

Nature of the appeal proceedings

Both appeals are brought pursuant to s 77(2) of the CS Act.
Section 77(2) only permits an appeal against a decision of the Committee to be brought on a question of law.
An appeal 'on' a question of law is narrower than one which merely 'involves' a question of law, and a question of mixed law and fact is not a question of law. [3]
[3] Paradis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [53] ‑ [55] (Buss JA, Wheeler and Pullin JJA agreeing).
That said, a factual finding may found an appeal on a question of law if the decision-maker for example: (a) misidentifies the relevant legal test to be applied; (b) misapplies the correct test; (c) makes a finding of fact where there is no evidence to support the finding of fact; or (d) adopts a manner of decision-making which fails to discharge its obligations according to law.[4]
[4] Medical Board of Australia v Arunkalaivanan [2023] WASCA 117 [71] (Buss P, Vaughan and Hall JJA).
A contest as to whether a factual finding is vitiated in one of these ways requires an evaluation of the fact-finding process of the decision‑maker to decide on its legality. The contest is not concerned with the merits of the factual finding; it is instead concerned with whether the decision-maker has acted lawfully and with authority.[5]
[5] Medical Board of Australia v Arunkalaivanan [2023] WASCA 117 [71] (Buss P, Vaughan and Hall JJA).

Extension of time

Viva Energy commenced its appeal (cross-appeal) out of time. It therefore required an extension of time within which to appeal.
The extension required was relatively short, the reason for delay was satisfactorily explained, there was no apparent prejudice to any other party from the delay, and there was a risk of significant prejudice to Viva Energy if the extension of time was not granted.
No party opposed the proposed extension.
I accordingly granted an extension of time to Viva Energy, at the appeal hearing, pursuant to s 77(3) of the CS Act.

The CS Act and the EP Act

A site is 'contaminated' for the purposes of the CS Act if it has a substance present, above background concentrations, that presents, or has the potential to present, a risk of harm to human health, the environment or any environmental value: CS Act, s 4(1).
Section 36 of the CS Act empowers the Committee to make decisions as to who is responsible for remediation of a site, and the extent to which a person is (or persons are) responsible for its remediation.
The CS Act commenced on 1 December 2006.
By s 25(3) of the CS Act, a person who caused or contributed to the contamination of a site before the commencement of the CS Act is responsible for its remediation only to the extent that the person caused, or contributed to, that contamination by 'an act that was done without lawful authority'.
Relevantly for the purposes of s 25(3), an 'act that was done without lawful authority' includes an act 'that contravened … any written law in force at the time the act occurred …': CS Act, s 25(5)(b)(i).
Section 49 of the EP Act:
(a)until 1 July 1998 provided that 'a person who causes or allows to be caused pollution commits an offence' (former s 49(1)); and
(b)has since 1 July 1998 provided that 'a person who causes pollution or allows pollution to be caused commits an offence' (s 49(3)).
In making any decision under the CS Act, the Committee is: (a) to consult the Chief Executive Officer of the Department and may consult with any other person it considers necessary; and (b) to act according to equity, good conscience and the substantial merits of the case, without regard to technicalities or legal forms, is not bound by the rules of evidence, and is to conduct its inquiries in any manner it considers appropriate: CS Act, s 34.
Before making a decision as to responsibility for remediation in respect of a person, the Committee must notify that person of various prescribed matters (CS Act, s 37), and afford the person an opportunity to make written submissions (CS Act, s 37(e)).
Further, in making such a decision, the Committee:
(a)is to take into consideration the contents of any notice given by the Committee under s 37, any submission made as referred to in s 37(e), and any information or documents provided in support of the reasons given in that submission; and
(b)may also take into consideration any other matters it considers relevant: CS Act, s 38(2).

Grounds, issues to be decided

The Hendersons rely on five grounds of appeal, and Viva Energy on five cross-appeal grounds.
Many issues emerge from these grounds and several overlap.
However, there are two issues which I propose addressing first:
(1)Whether the Committee erred in law in allocating responsibility for remediation to the Hendersons by misconstruing and misapplying s 25(3) of the CS Act. (Issue 1)
(2)Whether the Committee erred in law in allocating responsibility for remediation to Viva Energy in circumstances where the Committee did not (and could not) find that Viva Energy owned the bowsers at any relevant time. (Issue 2)
I intend addressing these issues first since the answer to Issue 1 may be dispositive of the appeal, and the answer to Issue 2 of the cross‑appeal.

Approach when making decision as to liability for remediation

Before proceeding further, it is convenient to say something about the proper approach to be adopted by the Committee when determining responsibility for remediation under the CS Act, and the principles to be followed by the Committee in assessing evidence, information and submissions.
Smith AJ (as her Honour then was) examined those matters extensively in Viva Energy Australia Pty Ltd v Contaminated Sites Committee [2018] WASC 89 (2018 judgment).
In that case, her Honour considered an earlier decision of the Committee, delivered on 27 July 2016 (2016 determination), by which the Committee had also imposed responsibility for remediation of the Site under the CS Act on Viva Energy and the Hendersons (among other persons).
Several grounds of appeal and cross-appeal raising questions of law were upheld, and her Honour remitted the decision back to the Committee for reconsideration with the Court's opinion on those questions.
I gratefully adopt her Honour's analysis which may be summarised, relevantly for present purposes, as follows:[6]
[6] Citations omitted.
(1)Section 25(5)(b)(i) of the CS Act requires the Committee to determine whether a person has in fact contravened any written law.[7]
[7] 2018 judgment [166].
(2)In making such a determination, the Committee is required to form more than a reasonable suspicion that that has occurred.[8]
[8] 2018 judgment [166].
(3)In following a rational process, the Committee must act upon any material put before it which is relevant and logically probative.[9]
[9] 2018 judgment [172].
(4)In determining who is responsible for remediation of a site and the extent to which a person is responsible for its remediation under s 25 (or under s 24 or s 26) of the CS Act, the Committee must base its decision upon material which it assesses as logically showing the existence or non-existence of facts relevant to responsibility and the likelihood or unlikelihood of the occurrence of facts.[10]
[10] 2018 judgment [175].
(5)The information relied upon must form a proper basis for the Committee's decision. That is, the Committee should only have regard to logically probative, reliable, and relevant material and information.[11]
(6)Where causation must be found, the facts relied upon must be set out in the Committee's reasons for decision. A leap from a list of matters considered to a result, without revealing the steps of reasoning, is not sufficient.[12]
(7)A decision-maker must engage in an active intellectual process directed to the relevant considerations.[13]
(8)Whilst it is not necessary for a decision-maker in its statement of reasons to refer to every matter considered, in some circumstances the failure to expressly refer to a particular relevant consideration justifies an inference that it was not taken into account.[14]
(9)The purpose of giving reasons is to enable the parties to not only understand why they won or lost, and on what grounds, but also for an appeal court to determine whether the decision contains any error of law.[15]
(10)The Committee must provide an adequate explanation as to why findings are made in a particular way.[16]
(11)It is not sufficient for the Committee merely to list the matters it has considered without stating why it has found some relevant and others irrelevant.[17]
(12)Where evidence conflicts, the Committee is not obliged to refer in detail to the entirety of the submissions. However, the Committee must refer to the conflicting material and explain why one set of material or submissions is preferred over another.[18]
(13)Statements of vague general conclusions or unexplained conclusions are not adequate reasons.[19]
(14)Where inferences are drawn from facts found, the reasons should state why those facts are found and clearly explain why those inferences are drawn.[20]
[11] 2018 judgment [187].
[12] 2018 judgment [188]
[13] 2018 judgment [199].
[14] 2018 judgment [200] - [201].
[15] 2018 judgment [204].
[16] 2018 judgment [209].
[17] 2018 judgment [209].
[18] 2018 judgment [210].
[19] 2018 judgment [211].
[20] 2018 judgment [212].
A failure, in a statement of reasons, to explain the actual path of reasoning in sufficient detail to enable a court to see whether the opinion expressed by the decision‑maker does or does not involve an error of law, is of itself an error of law.[21]
[21] Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480 [55].
As Quinlan CJ recently observed, '[t]he significance of the purpose for which problems of causation arise in the law (namely, the attribution of legal responsibility) remain critical to the concept of causation in the law'.[22] (emphasis added)
[22] Summit Rural (WA) Pty Ltd v Lenane Holdings Pty Ltd [2024] WASCA 122 [9].
His Honour went on to note that, in Wallace v Kam,[23] the High Court had articulated, as follows, the two 'distinct questions' involved in the determination of legal causation at common law: (a) a question of historical fact as to how particular harm occurred; and (b) a normative question as to whether legal responsibility for that particular harm occurring in that way should be attributed to a particular person.[24]
[23] Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375.
[24] Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375 [11] (French CJ, Crennan, Kiefel, Gageler and Keane JJ).
In my view, an affirmative answer to both questions is similarly required for any attribution of responsibility for remediation under s 25(3) of the CS Act on its proper construction.
As would be apparent from the terms of that provision, such responsibility can only be attributed to the extent that the person 'caused … or contributed to' contamination by some 'act' which was done 'without lawful authority'.

It follows that the mere fact of contamination is not sufficient to establish causation where the Committee seeks to rely on s 49(3) of the EP Act for the purposes of identifying the relevant 'act' under s 25(3) of the CS Act.[25]
[25] 2018 judgment [148] - [149].
Rather, a causal link must be established between an omission or positive act on the part of the person said to be responsible for remediation under s 25(3) of the CS Act (on the one hand), and the pollution contemplated by s 49(3) of the EP Act (on the other).
As Hall J (as his Honour then was) observed in Coffey:[26]
95A person contravenes s 49(3) if they cause pollution or allow it to be caused. The term 'allow' has at least as wide a meaning as 'permit'… A person permits something if they have knowledge of it and the authority or power to prevent it occurring. The knowledge required may be actual knowledge or knowledge of circumstances such that it could be said that they shut their eyes to the obvious or allowed something to go on not caring whether it occurred or not…
96The term 'cause' unlike the term 'allow' does not suggest any requirement of knowledge. It is not necessary to show that an alleged offender intended to cause the pollution or was negligent in failing to prevent the pollution before a court will find that a person caused the pollution … It is sufficient that the pollution arises from some positive act of the defendant… Where the pollution is a result of such process, even where the pollution is a consequence of an occurrence that the defendant could not have foreseen, the defendant will nonetheless be held to have caused the position… The question is not what caused the pollution but whether the identified acts of the defendant caused the pollution …
(emphasis added)
[26] Coffey LPM Pty Ltd v The Contaminated Sites Committee [No 2] [2013] WASC 98 [95] - [96]. Citations omitted.
Moreover, in the context of determining whether a person caused or contributed to contamination for the purposes of the CS Act, any assessment as to whether the person contravened s 49 of the EP Act must be made in accordance with the principle espoused in Briginshaw.[27]
[27] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336; 2018 judgment [177].
That is, the Committee must in such circumstances rely upon logically probative evidence or information, with its findings being 'open to the standard of balance of probabilities that could be regarded as a "comfortable satisfaction" of the facts in issue'.[28]
[28] 2018 judgment [185].

Allocation of responsibility to the Hendersons (Issue 1)

Issue 1 emerges from Ground 5[29] of the Hendersons' appeal.
[29] As amended, with leave, following the appeal hearing.
By Ground 5, the Hendersons contend that, in allocating responsibility for remediation to the Hendersons, the Committee erred in law by 'misconstruing and misapplying' s 25(3) of the CS Act.
In substance, Ground 5 raises a question as to whether the Committee sought to attribute responsibility for remediation to the Hendersons because:
(a)the Hendersons were the registered proprietors of the Site;
(b)the USTs were fixtures forming part of the Site which the Hendersons, as the Site's registered proprietors, had a legal obligation to maintain;
(c)the Hendersons' failure to maintain those fixtures caused or contributed to contamination,
in circumstances where:
(d)responsibility for remediation could not be imposed on the Hendersons merely because they were the Site's registered proprietors; and/or
(e)the Committee failed to give proper, genuine and realistic consideration to matters for which such consideration was mandatory in arriving at the conclusions referred to in paragraphs 61(b) and (c) above.
To determine if an error of law has been shown, it is necessary to closely examine the Committee's reasons noting that the reasons are not to be construed in isolation but, rather, against the background of the 'prior dealings' between the Committee and the Hendersons.[30]
[30] BP Australia Pty Ltd v Contaminated Sites Committee [2012] WASC 221 [125] (Martin CJ).
On 19 April 2022, the Committee sent a notice to the Hendersons, pursuant to s 37 of the CS Act notifying them of the Committee's proposed decision relating to responsibility for remediation of the Site (s 37 notice).[31]
[31] Appeal book, p 1331 - 1359.
In the s 37 notice, the Committee relevantly foreshadowed attributing responsibility to the Hendersons on the basis that: (a) 'as the owners of the land including all fixtures not regulated under any other agreement', the Hendersons 'were responsible for ensuring that [the USTs] were properly maintained'; (b) the Committee regarded 'infrastructure, such as USTs and their appurtenances, as fixtures and … the responsibility of the landowner'; (c) the act or acts of the Hendersons 'in failing to ensure that the USTs were properly maintained caused pollution, in contravention of the former section 49(1) of the EP Act'; and (d) such pollution 'caused contamination and was an act that was done without lawful authority within the meaning of section 25(3) of the CS Act'.[32]
[32] s 37 notice, [125(e)], [125(f)], [125(g)]. See also [126(f)], [126(g)], [126(h)] and [127(m)]; [127(n)], [127(o)]; and [128(d)], [128(e)], [128(f)].
In response, the Hendersons advanced written submissions to the Committee relevantly to the following effect: (a) the Committee's proposed conclusions that they were responsible for ensuring the USTs were properly maintained and that the 'fixtures were the responsibility of the landowner, were inconsistent with the position at law'; (b) the USTs at the Site were 'plainly not fixtures', having been removed from the Site in 2004 when simply sitting in a hole in the ground and having not been 'annexed or secured to the land in any way'; (c) as a matter of industry practice, USTs were 'frequently understood to be the property of the fuel company and are required to be removed by lessees at the end of the tenancy. Neither the mode nor object of annexation tests for fixtures are satisfied'; and (d) in Midcoast Petroleum Pty Ltd v Keldros Pty Ltd [2019] NSWSC 970 the parties had proceeded on the basis that the USTs and other fuel infrastructure were not fixtures and Ward CJ (in equity) did not challenge that assumption.[33] (emphasis added).
[33] See letter dated 13 June 2022 from Lawton Gillon to the Committee (pg 1366 - 1374 of appeal book) at [48] - [50].
At [111] to [121] of the 2023 determination the Committee addresses various matters raised on behalf of the Hendersons in response to the s 37 notice.
The discussion at [117] to [119] is particularly relevant to Issue 1.
It reads:
[117] [The Hendersons question] on what basis has the person responsible for the installation of the USTs not caused or contributed to the contamination occurring from 1988 onwards. In response to this, the Committee is satisfied that when the Hendersons took ownership of the site, it became their legal responsibility to ensure that the site and associated fuel infrastructure were fit for use and not leaking. Importantly, no integrity tests were undertaken when the Hendersons took ownership of the site in 1988 (or at any other time that the Committee have been made aware of) to ensure the tanks and associated infrastructure were tight, free of leaks and not causing contamination. (See also the discussion below at paragraphs 118-119, on the legal position with respect to relevant fixtures at the site, and the effect of the lease arrangements).
[118] [The Hendersons state] that the Committee has wrongly applied s 25(3) of the CS Act because there is no statutory provision or legal principle that supports the proposition that the Hendersons were responsible for ensuring fuel infrastructure was properly maintained. [The Hendersons further state] that the USTs were not fixtures and cites a NSW Supreme Court case where the parties proceeded on the basis that USTs and other fuel infrastructure were not fixtures. The Chief Justice in Equity (Ward CJ) did not challenge that assumption. In response to this, the Committee notes the National Dairies WA Ltd v Commissioner of State Revenue [2001] WASCA 112 case which provides strong authority for the proposition that USTs are fixtures.
[119] [The Hendersons submit] that even if the USTs and infrastructure are properly classified as fixtures, the lease in place for Period 4 requires the lessee to repair and maintain all fixtures. They further submit that the Committee's statement that the land including fixtures was not regulated under any other agreement is wrong for at least Period 4 and the Committee only refers to the [Lease] in passing but does not consider its legal effect. In response, the Committee acknowledges the existence of a lease agreement …, but in the Committee's view, the terms of the [Lease] are not determinative in allocating responsibility for remediation under the provisions of the CS Act. Notwithstanding the lessee was required to repair and maintain the 'Leased Premises' as that term is defined in cl 1.1 of the lease (which includes fixtures), the Committee is satisfied that the USTs were the landlord's fixtures and, therefore, as fixtures they form part of the real property in which they are located. It is also noted that the Hendersons had the power to view and repair the Leased Premised under the terms of the lease. It is on these bases that the Committee has concluded that the Hendersons retained responsibility for contamination arising from the presence of the USTs on the site.
(emphasis added)
The Committee then proceeds to discuss other points raised by the Hendersons in response to the s 37 notice and set out its conclusions as to the physical sources of contamination.[34]
[34] See paragraph [16] above.
After then referring to former s 49(1) and current s 49(3) of the EP Act, the Committee records there had, in its view, been 'contamination caused without lawful authority, by reason of acts that have caused pollution, in contravention of the EP Act', and proceeded to express a detailed series of conclusions as to responsibility for remediation.
Regarding the Hendersons, the Committee concluded that for 'Period 4' (spanning 22 June 1992 to 30 December 2004):
The Hendersons, as the owners of the site, including all fixtures, were responsible for ensuring that they were properly maintained. The Committee regards infrastructure, such as USTs and their appurtenances, as fixtures and is the responsibility of the landowner.
… the act or acts of the Hendersons in failing to ensure the USTs were properly maintained caused pollution, in contravention of the former section 49(1) of the EP Act and current section 49(3) of the EP Act.
… this pollution caused contamination and was an act that was done without lawful authority under section 25(3) of the CS Act.[35]
(emphasis added)
[35] 2023 determination [141(d)], [141(e)] and [141(f)].
The Committee's conclusions with respect to Periods 1, 2 and 3 read in substantially the same terms.[36]
[36] 2023 determination [138(e)], [138(f)] and [138(g)] (Period 1), [139(f)], [139(g)] and [139(h)] (Period 2) and [140(m)], [140(n)] and [140(o)] (Period 3).
The Committee's reasons suggest two findings were central to its conclusion that the Hendersons had caused or contributed to contamination for the purposes of s 25(3) of the CS Act:
(a)the Hendersons, as owners of the Site, were responsible for ensuring all fixtures were properly maintained; and
(b)the USTs were 'fixtures'.
Each of these findings was an error of law.
I say this for the following reasons.

Responsibility to maintain fixtures as owner of Site

As noted earlier, responsibility for remediation can only be attributed to a person under s 25(3) of the CS Act, when read with s 49(3) of the EP Act, where there has been some 'act' by the person which either caused contamination or allowed it to be caused.
It necessarily follows that to attribute such responsibility to the Hendersons, the Committee was duty bound to identify either: (a) a 'positive act' by the Hendersons which caused or contributed to the contamination; or (b) circumstances establishing that the Hendersons had both knowledge of the contamination and the authority or power to prevent it occurring or continuing.[37]
[37] Cf. Coffey LPM Pty Ltd v The Contaminated Sites Committee [No 2] [2013] WASC 98 [95] - [96].
Moreover, as has been seen, the Committee was also required to make any findings with respect to those matters only on the basis of logically probative material, such as could be regarded as a 'comfortable satisfaction', consistent with the principle espoused in Briginshaw.
The Committee's reasons do not, on their face, suggest it undertook this exercise at all.
Instead, according to the reasons:
(a)the Committee was 'satisfied' that when the Hendersons became the owners of the Site it 'became their legal responsibility to ensure that the [S]ite and associated fuel infrastructure were fit for use and not leaking';[38] and
(b)the Hendersons 'had the power to view and repair the Leased Premise[s]' under the terms of the Lease.[39]
[38] 2023 determination [117].
[39] 2023 determination [119].
No basis for the first conclusion emerges from a review of the Committee's reasons, no attempt at engagement with the terms of the Lease is disclosed for the second, and no steps of reasoning are apparent for either.
The Committee's failure to undertake the exercise referred to in paragraph 77 above, in favour of an approach which appears to have assumed the existence of a maintenance obligation and consequential responsibility for remediation based on little more than ownership of a site with pre-existing pollution-causing fixtures, supports an inference that the Committee either misconstrued that provision, misapplied it, or both.
As s 25(3) makes clear, responsibility for remediation is to be imposed under that section only to the extent that the person caused, or contributed to, the contamination by an act that was done without lawful authority.
In this regard, s 25(3) is to be contrasted with s 27 of the CS Act. The latter is a discrete provision the express purpose of which is to impose responsibility for remediation on 'Landowners' in certain circumstances.
Further, the Committee was, in any event, duty bound to properly explain the basis for each of its conclusions referred to in paragraph 80 above.
With respect to the second of those conclusions, the Committee's duty in my view included an obligation to engage meaningfully with the provisions of the Lease.
As part of any such exercise it was incumbent on the Committee:
(1)To clearly identify any provisions of the Lease which, on their proper construction taken in conjunction with any other relevant (and adequately identified) material before the Committee, supported a finding of 'comfortable satisfaction' that the Hendersons in fact had the 'authority or power to prevent' any contamination.
(2)To adequately explain the reasons for any such conclusion notwithstanding the Lease:
(a)contemplated a demise of the entirety of the Site to the Tindales including any fixtures;
(b)obliged the Tindales to 'maintain, replace, repair and keep [the Site] and every part of [it] … including all … fixtures in … good … substantial and tenantable repair and condition to the reasonable satisfaction of the [Hendersons] …';[40]
(c)obliged the Tindales to notify the Hendersons in writing of any defect or want of repair to the Site;[41]
(d)obliged the Tindales not to permit any 'noxious … act' to occur 'in or upon' the Site[42] including any contamination emanating from the Site; and
(e)obliged the Tindales to comply with any legislation applicable to the use of the Site[43] including the EP Act.
[40] Lease, cl 4.1.
[41] Lease, cl 4.3.
[42] Lease, cl 5.2(a).
[43] Lease, cl 9.1.
It follows, in my view, that the Committee's failure to reveal its actual path of reasoning for either conclusion referred to in paragraph 80 above (let alone in 'sufficient' detail) amounts to an error of law.[44]

USTs as 'fixtures'

[44] Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480 [55].

In National Australia Bank Ltd v Blacker,[45] Conti J relevantly made the following observations by reference to various authorities:
(1)Fixtures are items that have been attached to land in such a way as to become, at law, part of the land.
(2)Whether an item has become a fixture depends essentially upon the objective intention with which the item was put in place.
(3)The two considerations which are commonly regarded as relevant to determining the intention with which an item has been fixed to the land are: (a) the degree of annexation; and (b) the object of annexation.
(4)In determining the purpose or object of annexation, as a general rule, regard ought to be had to: (a) whether the attachment was for the better enjoyment of the property generally or for the better enjoyment of the land and/or buildings to which it was attached; (b) the nature of the property the subject of affixation; (c) whether the item was to be in position either permanently or temporarily; and (d) the function to be served by the annexation of the item.
(5)In determining the degree of annexation, the following may be considered: (a) whether removal would cause damage to the land or buildings to which the item is attached; (b) the mode and structure of annexation; (c) whether removal would destroy or damage the attached item of property; and (d) whether the cost of renewal would exceed the value of the attached property.
(6)There is no single test which is sufficient to determine whether an item of property is a chattel or a fixture.
(7)Where an item of property is affixed to the land to any extent, aside from resting on its own weight, it is presumed to be a fixture, and the burden of proof lies upon the party asserting that it is not a fixture.
(8)Conversely, where an item of property is not affixed to the land but merely rests on its own weight, it is presumed to be a chattel and the party asserting that it is instead a fixture bears the onus of proof.[46]
[45] National Australia Bank Ltd v Blacker [2000] FCA 1458; 104 FCR 288; 179 ALR 97.
[46] National Australia Bank Ltd v Blacker [2000] FCA 1458; 104 FCR 288; 179 ALR 97 [9] - [17].
None of the above considerations are touched upon in the Committee's reasons.
The Committee did briefly refer to a decision of the Full Court of this Court[47] as providing, in the Committee's view, 'strong authority for the proposition that USTs are fixtures'. However, as the Hendersons correctly observe the Full Court's decision concerned underground milk storage vats.
[47] National Dairies WA Ltd v Commissioner of State Revenue [2001] WASCA 112.
Moreover, the question for the Full Court was whether the primary judge was correct in concluding that those vats were fixtures for the purposes of revenue law.
The Full Court resolved that question by applying the general principle that the question of whether an item is a fixture or a chattel is to be determined, as a matter of fact, having regard to all relevant circumstances.
In applying the general principles to that case, Malcolm CJ (Kennedy and Wallwork JJ agreeing) gave careful and detailed consideration to the precise function of each piece of equipment in issue before concluding that it had not been demonstrated that the learned primary judge had erred in finding they were fixtures.[48]
[48] National Dairies WA Ltd v Commissioner of State Revenue [2001] WASCA 112 [52] - [59].
The Committee's reasons stand in stark contrast to this approach.
Not only do the Committee's reasons fail to allude to any of the relevant legal principles, but perhaps more concerningly they also disclose no attempt to embark upon any factual enquiry of the kind which is necessary to determine whether the USTs were in fact fixtures.

In my view, the Committee's failure to do so, in circumstances where its finding that the USTs were fixtures was central to its attribution of responsibility for remediation, readily leads to an inference that the Committee has not explained its actual path of reasoning in sufficient detail to enable a court to see whether the finding involved an error of law.
The Committee's failure to do so is accordingly an error of law in and of itself.[49]

Omission causing or contributing to contamination

[49] Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480 [55].

As noted earlier, a causal link must be established between the omission or positive act by the person said to be responsible for remediation under s 25(3) of the CS Act (on the one hand), and the pollution contemplated by s 49(3) of the EP Act (on the other).
Mere 'ownership' of infrastructure or equipment, without more, is insufficient.
In circumstances where such responsibility is to be attributed on the basis of an omission,[50] it is necessary not only for the Committee to find that the relevant person(s) had both knowledge of the pollution and the authority or power to prevent it occurring or continuing, but also to explain its actual path of reasoning in sufficient detail to enable a court to see whether an error of law was involved.
[50] Eg. A failure to ensure proper maintenance of fixtures (the Hendersons), or a failure to ensure correct installation of equipment (Viva Energy).
To be clear, it is necessary for the Committee in such circumstances to do the following:
(1)Find that the relevant person(s) had knowledge of the pollution.
(2)Explain its actual path of reasoning for why that was so.
(3)Find that the relevant person(s) had the authority or power to prevent the pollution from occurring or continuing.
(4)Explain its actual path of reasoning for why that was so.
(5)Find that the matters referred to in (1) and (3) above caused or contributed to the pollution occurring or continuing.
(6)Explain its actual path of reasoning for why that was so.
(7)Be 'comfortably satisfied', based on logically probative evidence or information consistent with the principle espoused in Briginshaw, before making any of the findings referred to in (1), (3) and (5) above.
(8)Explain its actual path of reasoning for why it was so satisfied.
(9)Explain its actual path of reasoning, leading to any of the findings referred to in (1), (3) and (5) above, in sufficient detail to enable a court to see whether they involved an error of law.
In my view, the Committee's reasons fall far short of satisfying these requirements.

Conclusion - Issue 1

For the above reasons, the Hendersons have made out Ground 5 of their appeal.
In short, the Committee misconstrued and/or misapplied s 25(3) of the CS Act in seeking to attribute responsibility to the Hendersons under that provision and adopted a manner of decision-making which failed to discharge its obligations according to law.

Allocation of responsibility to Viva Energy (Issue 2)

Issue 2 emerges from Grounds 1 and 2 of the cross-appeal.
By those grounds, Viva Energy contends that the Committee erred in law in effectively finding that:
(a)Viva Energy caused pollution in contravention of former s 49(1) of the EP Act because Viva Energy may have owned the bowsers and, if it did, would have been responsible for installing them; and
(b)although the Committee could not conclude that Viva Energy in fact owned the bowsers, in circumstances where either Viva Energy or Beasam did, it was appropriate that any responsibility relating to ownership of the bowsers be shared equally between those two entities[51]
[51] The findings emerge from [130(k)] and [141(h)] of the 2023 determination. See also [139(k)], [139(l)] and [140(h)].
The analysis and conclusions reflected in paragraphs 99 to 103 above apply with equal force to the Committee's findings as summarised in paragraph 107(a) above.
As for the finding summarised in paragraph 107(b) above, the finding is perplexing, irrational, and self-evidently devoid of legal foundation.
Grounds 1 and 2 of the cross-appeal are accordingly made out.

Effect of the Court's conclusions

My conclusions with respect to Ground 5 of the appeal, and Grounds 1 and 2 of the cross-appeal, mean that both the appeal and the cross-appeal must be upheld.
At the appeal hearing, counsel for Viva Energy effectively accepted that if it succeeded on Ground 2 of the cross-appeal it was unnecessary for the Court to consider any of its other grounds.[52]
[52] ts 62.
To similar effect, counsel for the Hendersons submitted the Court could remit the matter back to the Committee on only one ground, because 'one error will infect the whole allocation'.[53]
[53] ts 77.
That said, counsel for the Hendersons nevertheless urged the Court 'to consider a more comprehensive framework'[54].
[54] ts 77.
Given the conclusion recorded in paragraph 111 above it is strictly unnecessary for me to address any of the remaining grounds of appeal or cross-appeal.
Nonetheless, I propose making observations about some of the issues raised by several of those other grounds.
I do so in deference to the fact that extensive submissions have been made about a number of those other grounds and also noting that the fourth defendants (Amato parties) filed submissions, pursuant to leave, in connection with Ground 3 of the cross-appeal.
The observations which follow are not intended to be exhaustive.
Whilst I have addressed most of the other grounds raised, I have not dealt with all of them.
My failure to address any specific ground (or proposition) should not be construed as either acceptance or rejection.

Section 26 of the CS Act

By Ground 3 of the cross-appeal, Viva Energy contends the Committee erred in law in deciding that s 26 of the CS Act was not applicable.
Section 26 provides:
26.Person who changes use of land - responsibility for remediation
(1)Where, after the commencement of this Act, an owner or occupier of a site has changed, or proposes to change, the use to which land that comprises all, or part, of the site is put, that person is responsible for remediation of the site to the extent that remediation is required because of the change, or proposed change, of use.
(2)To the extent that the remediation is required because of the change, or proposed change, of use referred to in subsection (1) -
(a)a person who caused or contributed to the contamination is not responsible for remediation of the site under section 25; and
(b)the State is not responsible for remediation of the site under section 29(1)(a) or (b).
(emphasis added)
In mid-2005, the Amato parties formed a partnership known as Middleton Road Investments for the purpose of making an offer to purchase the Site.[55]
[55] 2018 judgment [41].
Also in mid-2005, the Hendersons filed a scheme amendment request with the City of Albany to rezone the Site from 'service station' to 'tourist residential'.
On 10 November 2005, the Amato parties acquired the Site from the Hendersons and became its registered proprietors.[56]
[56] 2023 determination [34].
The contract of sale with the Hendersons among other things provided that:
This contract is conditional upon all fuel or other tanks, above or below ground, being removed from the site, and an environmental clearance in writing is received, stating the site is free of contamination, prior to settlement.[57]
[57] 2018 judgment [43].
As noted earlier, the CS Act commenced on 1 December 2006.
On 14 January 2008, the Site was rezoned from 'service station' to 'tourist residential' subject to conditions relating to its contamination status.
On 7 May 2009, an exemption certificate was given to the Amato parties under s 65 of the CS Act.
The material provisions of the certificate are as follows:
PERSONS WHO HOLD THIS CERTIFICATE
This exemption certificate is given by the [Committee] to the registered proprietors of the [Site] as at the Date of Certificate, all of whom were registered on 10 November 2005 ('date of ownership'), and being [the Amato parties] all of [address stated] ('the applicants').
EXTENT TO WHICH PERSONS ARE NOT RESPONSIBLE FOR REMEDIATION OF THE SITE
The extent to which the applicants are not responsible for remediation
1.The applicants are not responsible under s27(2) of the [CS Act] for any remediation required in relation to that portion of contamination on the [Site] caused and/or contributed to prior to the date of ownership and associated with its historical use as a service station ('pre-existing contamination');
2.The applicants are not responsible under s27(2a) of the [CS Act] for any remediation required in relation to that portion of contamination on any other sites caused and/or contributed to by the pre-existing contamination;
3.This exemption does not apply in relation to any responsibility of the applicants for remediation of the site or any other sites otherwise arising under ss 25, 26 or 27 of the [CS Act].[58]
[58] 2018 judgment [55].
As Smith AJ observed in the 2018 judgment, the exemption certificate given to the Amato parties: '… excludes them from responsibility only for pre‑existing contamination of the [Site] that occurred prior to the date they became the owner of the Site and the contamination associated with the historical use of the Site as a service station. However, the exemption certificate does not otherwise apply in relation to any responsibility that [the Amato parties] have for remediation of the Site arising under s 25, s 26 or s 27 of the [CS Act]…'[59] (emphasis added)
[59] 2018 judgment [262].
In the 2023 determination, the Committee relevantly observed:
[101] [The Department of Water and Environmental Regulation (DWER)] states that the reference to section 26 of the CS Act, ''to the use to which the land ... is put" should be taken to refer to development or activities carried out (or proposed to be carried out) on the land, rather than the zoning of the land. The Committee generally agrees with DWER's submission…
[102] Further, DWER suggests that it would be useful for the Committee to clarify the extent to which persons are responsible for remediation of the site. It is DWER's view that a person's responsibility extends only to the remediation necessary for the site to be reclassified to a classification other than C-RR, and they are not necessarily required to remediate the site such that it is suitable for all uses.
[103]In response to DWER's submission, the Committee considers that it is the Committee's task to determine and apportion responsibility for remediation and not the extent of remediation required.
[124] The Committee considered the possibility that although by December 2004 the service station had been closed and all fuel removed from the site, some potentially contaminating sludge may have remained in the tanks until they were eventually removed. The Committee has concluded that as the infrastructure was not operational (i.e., no fuel being dispensed through the UPSS) and all fuel had been removed from the site [4.6], any contamination caused while the site was closed, is likely to be insignificant to the overall responsibility for remediation of the site.
…
[126] The Committee has considered the significance to its decision of the application to amend to facilitate the use of the site for residential or tourism development. The Committee has concluded that the rezoning of land, by itself, does not trigger section 26 of the CS Act. And, in any case we note that the proposals to rezone the land and other relevant steps occurred before the commencement of the CS Act on 1 December 2006.
(emphasis added)
According to Viva Energy, the remarks recorded at [126] of the 2023 determination suggest the Committee construed s 26 of the CS Act such that an owner or occupier who (in fact) changes the use of a site after the commencement of the CS Act has 'no responsibility' to remediate 'so long as a change in use was proposed before the commencement of the [CS Act]'.
With respect, I do not agree with this characterisation of the Committee's remarks.
As the State correctly observes:
(1)The conclusion, at [126] of the 2023 determination, that 'the rezoning of land, by itself, does not trigger section 26 of the CS Act' should be understood as a conclusion that s 26 is not applicable in the present case because the rezoning (being a proposed change of use) has not in itself necessitated any additional remediation and there has been no (actual) change of use.
(2)Whilst the Committee's comment at [126], about the rezoning proposals being initiated before the commencement of the CS Act, may suggest a misunderstanding as to when s 26 might be triggered, the comment did not in any event affect the Committee's earlier conclusion that s 26 was not triggered in the present case.
Further, and as the State also correctly submits:
(1)On a proper construction of s 26, the use of land concerns activities which are done on the land.
(2)A change of use therefore necessitates some change to the activities carried out on the land. This necessarily follows from the focus of the provision on the 'use to which … the site is put'.
(3)As Kennedy J noted in Re EPA; ex parte Chapple, '[t]o zone land is merely to classify it for future use'.[60]
[60] EPA; ex parte Chapple (1995) 89 LGERA 310, 311.
(4)The rezoning of land under a planning scheme may affect, for example, whether development approval is required for a use, and the matters that will be considered by the decision-maker when determining an application for development approval for a use.
(5)The rezoning does not in and of itself change the activities that occur on the land.
(6)However, the rezoning of land, or a request for a rezoning, may evidence a proposal to change the use of the land.
(7)Whether a particular rezoning or rezoning request is evidence of a proposal to change the use of land depends on the facts of the particular case; it being a question of fact what use or uses are actually proposed.
(8)When land is rezoned, there may be some uncertainty as to precisely what use or uses the landowner proposes, if any. However, that uncertainty does not necessarily translate into uncertainty in the application of s 26.
(9)This is because s 26 is not triggered simply by a proposal to change the use.
(10)There is also a second criterion; namely that there must also be a corresponding requirement to remediate.
(11)A proposal to change a use is not necessarily a singular event.
(12)A particular change of use may have been proposed prior to the commencement of the CS Act and may still be proposed after the commencement of the Act.
(13)Such a proposal to change use may trigger s 26, even if it was first initiated before the commencement of the Act.
In short, I consider that s 26 of the CS Act has no role to play unless or until an owner or occupier of a site on or after 1 December 2006 either:
(a)makes a proposal to change the use to which (at the time of the proposal) land comprises all or part of the site is put; or
(b)actually, changes the use of such land;
in consequence of which proposed (or actual) change remediation is required.
In the context of s 26, the words 'change' and 'use' must both be taken to bear their ordinary meaning.
In their submissions, the Amato parties advance a number of contentions in support of an ultimate proposition that Ground 3 of the cross-appeal should fail.
In addition, the Amato parties request that the Court provide an opinion as to the application of s 26, 'to assist the Committee to clarify the scope of responsibility under s 26 and provide certainty to the parties' should the matter be remitted.
As explained above, I have rejected Viva Energy's submission that the Committee erred in law with respect to its conclusion concerning s 26.
For at least that reason, it is neither necessary nor appropriate for the Court to say anything further about the possible future application of s 26 in relation the Site.

Improper sealing of joints beneath bowsers as a contamination cause

By Ground 4 of the cross-appeal, Viva Energy contends the Committee erroneously found that the contamination beneath the 'dispensing island', upon which the bowsers rested, was the result of faulty installation of bowsers in 1991 (Bowser Faulty Installation Finding).
Viva Energy asserts that this finding involved 'speculation and guesswork', and that in making the finding the Committee impermissibly relied on its own general knowledge and experience.
According to Viva Energy, the Committee also failed to apply the principle espoused in Briginshaw, the outcome was legally unreasonable, and the Committee failed to give adequate reasons.
In the 2018 judgment, Smith AJ found the Committee erred in law in four different ways when finding, in its 2016 determination, that the installation of the bowsers was faulty.
The errors found by her Honour were:
(a)a failure to consider information and submissions put to the Committee by Viva Energy and the Hendersons;
(b)a failure to give any reasons why the Committee did not have regard to the information and submissions (alternatively providing inadequate reasons by not disclosing its reasoning process in that connection);
(c)a failure to reveal in its decision the facts that it found to be logically probative that resulted in its finding; and
(d)making findings which were to be regarded as 'conjecture or guesswork'.[61]
[61] 2018 judgment [274] - [277].
Viva Energy accepts that, unlike the approach reflected in its 2016 determination, the Committee in its 2023 determination both referred to various submissions made by Viva Energy and endeavoured to deal with them.
However, according to Viva Energy, the Committee did so in a manner which involved errors of law.
Ground 4 of the cross-appeal asserts that the errors of law appear at [75], [130(o)] and [130(q)] of the 2023 determination.
Those paragraphs read:
75.Despite the absence of adequate soil investigations, the presence of hydrocarbons in soil and light non-aqueous phase liquid (LNAPL) in groundwater below the dispensing island suggests that hydrocarbon leakage associated with the dispensing island caused contamination. A leak in the below-ground connection point between the bowser and the underground fuel pipe could have caused this contamination and would not have been detected by the usual bowser maintenance and certification processes. Furthermore, in the Committee's professional experience, in the majority of cases where contamination of this type has occurred in similar circumstances, it is often attributable to faulty installation. A leak of this nature would, in the Committee's professional experience, occur at a constant rate, that is, would not be expected to increase or decrease over time, as opposed to other methods of release, for example where corrosion would result in an increase in the rate of the leak over time. On the balance of the material, such as it is, the Committee has concluded that its more likely than not that this occurred, contributing to the contamination at the site.
…
130.Based on the evidence outlined in paragraphs 123 to 128 above, and the specific evidence outlined below, the Committee has concluded that contamination present at the site has been caused by the following sources:
…
(o)As detailed in paragraph 53(II), four bowsers were likely installed in 1991 when Shell and NYL entered into a supply agreement … Based on this, and given the absence of evidence of any corrosion of or damage to pipework, appropriate soil sampling or the occurrence of any significant contamination event (e.g. a fuel spill), the Committee has concluded that hydrocarbon-contaminated soil and groundwater in the vicinity of the dispensing island is the result of faulty installation of bowsers in 1991. This is not to imply that the bowsers were faulty or poorly maintained but rather that the joint(s) beneath the bowser(s) connecting the bowser(s) to the underground pipe work were improperly sealed, leaking fuel through gaps at a rate which would have remained constant, from the date of installation until decommissioning.

…
(p)Based on the information referred to in paragraphs (j) to (p) above, the Committee has concluded that contamination present beneath the dispensing island is the result of the faulty installation of new bowsers in 1991.
(emphasis added)

According to Viva Energy, the reasoning, at [75] of the 2023 determination, was as follows:
(a)the presence of hydrocarbons beneath the dispensing island 'suggests' that hydrocarbon leakage was 'associated with the dispensing island';
(b)a leak in the below-ground connection point between the bowser and the underground fuel pipe 'could have caused this contamination';
(c)in the Committee's professional experience, in the majority of cases where contamination of this type occurred in similar circumstances, it was 'often attributable' to faulty installation;
(d)a leak of that nature would occur at a constant rate, as opposed to other methods of release; and
(e)on the balance of the material, 'such as it is', the Committee concluded it 'is more likely than not that this occurred, contributing to contamination at the site'.[62]
(emphasis added by Viva Energy)
[62] Viva Energy's submissions dated 23 May 2024 [121].
Using the same sub-paragraph references as above, Viva Energy submitted:
(a)all that was indicated by the presence of hydrocarbons beneath the dispensing island is that hydrocarbons began or found their way there (for example, in the groundwater) and the finding that this was 'associated' with the dispensing island is vague and general;
(b)this finding was 'conjecture'. It may as easily have been said that pipework, tanks or other causes raised by Viva Energy 'could' have caused the contamination, however those other matters were disregarded;
(c)this involved an apparent reliance on the Committee's professional experience but in a way that impermissibly and illogically reasons from the general to the particular, and is further complicated by the vague and unexplained references to contamination of 'this type' which had occurred 'in similar circumstances';
(d)this was another 'supposition' the relevance of which is not explained; and
(e)this was indicative of a lack of actual persuasion, especially when taken together with the findings recorded in paragraphs 152(a) - (c) above.[63]
[63] Viva Energy's submissions dated 23 May 2024 [125].
As was properly accepted at the appeal hearing:
(1)A court reviewing an administrative decision 'should not be concerned with looseness in the language ... nor with the unhappy phrasing of the reasons of an administrative decision‑maker … The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error'.[64]
(2)Rather, they are to be given a 'beneficial construction'.[65]
(3)An appellate court must read reasons under challenge as a whole and fairly, taking account of the decision-maker's lack of legal expertise, without applying 'a fine appellate toothcomb'.[66]
[64] Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, 27l (Brennan CJ, Toohey, McHugh and Gummow JJ); Collector of Customs v Pressure Tankers Pty Ltd and Pozzolanic Enterprises Pty Ltd [1993] FCA 322; (1993) 43 FCR 280, 287 (Neaves, French and Cooper JJ).
[65] Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, 27l (Brennan CJ, Toohey, McHugh and Gummow JJ).
[66] Woollard v The Medical Board of Australia [2016] WASCA 151 [54] (Newnes, Murphy and Mitchell JJA) and the cases there cited.
As the State correctly notes:
(1)In relation to the bowsers, at [130(o)] of the 2023 determination, the Committee reached the conclusions emphasised in the extract reflected in paragraph 151 above.
(2)The 2023 decision also discloses that the Committee made several findings of fact that led it to conclude that contamination at the Site was more likely than not the result of, relevantly, faulty installation of the bowsers.
(3)Those findings included:
(a)contamination existing on the Site before 7 December 1988 having naturally attenuated;[67]
(b)the bowsers having been installed in 1991;[68]
(c)it being unlikely that any relevant contamination occurred post-closure (the end of 2004);[69]
(d)hydrocarbons (such as from petrol or diesel) having been present in soil beneath the fuel dispensing island;[70]
(e)none of the off-site 'sources' identified by the Hendersons having likely contributed significantly to hydrocarbon contamination on the site;[71]
(f)certification of compliance with weights and measures requirements for the bowsers not being evidence that below-ground pipework connections did not leak;[72]
(g)no evidence of the construction of the fuel bowser system having been provided to support the contention that the bowsers were of 'suction' type and therefore unlikely to have leaked;[73] and
(h)no evidence of any significant contamination event having occurred (e.g. a fuel spill).[74]
[67] 2023 determination [40].
[68] 2023 determination [49.V], [53], [130(o)].
[69] 2023 determination [42], [124].
[70] 2023 determination [130(l)-(n)].
[71] 2023 determination [85]-[89], [127], [130(w)].
[72] 2023 determination [70]-[71].
[73] 2023 determination [72].
[74] 2023 determination [130(g)], [130(o)].
In my view, a proper application of the principles summarised in paragraph 154 above, in the context of the above findings and those recorded at [75] of the 2023 determination, does not support an inference that the Bowser Faulty Installation Finding amounted to mere conjecture or guesswork.
In saying the above, I am mindful that Smith AJ effectively reached the opposite conclusion in the context of an earlier finding by the Committee in the 2016 determination to substantially the same effect.[75] However, in my view the Committee's reasons are now sufficiently more detailed as to render such an inference no longer open.
[75] 2018 judgment [277].
Contrary to Viva Energy's submission, I also do not consider that the Committee in its reasons, when read as a whole, sought to rely upon its own (specialist) experience in an impermissible or illogical way.
Nor do I consider the Bowser Installation Finding to be legally unreasonable, or that the Committee failed to give adequate reasons for reaching that finding.
That said, none of my observations relating to the Bowser Faulty Installation Finding should be understood as detracting in any way from what I have already said about any process of reasoning by which the Committee may seek to attribute responsibility for remediation under s 25(3) of the CS Act (read with s 49(3) of the EP Act) based on an omission.[76]
[76] See paragraphs 101 and 102 above.

Faulty installation of USTs as a contamination cause

By Ground 1 of their appeal, the Hendersons effectively contend that the Committee erroneously failed to apply the principle espoused in Briginshaw in finding that the installation of, relevantly, the USTs was faulty (UST Faulty Installation Finding).
The Hendersons assert that in making such a finding the Committee failed to expose its reasoning, impermissibly relied on its own general knowledge and experience, and had 'no evidence' to support its finding which was the result of 'conjecture or guesswork'.
The Briginshaw principle is relevantly engaged in relation to the Hendersons because of the nature of the finding which the Committee proposed making against them; namely, that they contravened former s 49(1) and/or current s 49(3) of the EP Act being conduct amounting to a criminal offence.
The nature of the alleged conduct was an omission by the Hendersons to ensure proper maintenance of the USTs in order to prevent the USTs causing further pollution.
To establish a contravention of this kind, it was necessary for the Committee to have found, among other things, that the Hendersons had 'knowledge' of the relevant pollution.[77]
[77] As to the form of knowledge required see Coffey LPM Pty Ltd v The Contaminated Sites Committee [No 2] [2013] WASC 98 [95] (Hall J).
On the Committee's findings, the relevant pollution took the form of leakage of hydrocarbons from one or more of the USTs installed before 1988.
Although knowledge of such leakage would have been a prerequisite for any finding that the Hendersons had contravened former s 47(1) (or current s 47(3)) of the EP Act, I consider it would be a step too far to construe those provisions such that the Hendersons would also have been required to have known the precise cause of the leakage (here, on the Committee's findings 'faulty installation') for that purpose.
Cognisant of the above, it would seem to me that the role of Briginshaw, in the context of the UST Faulty Installation Finding, would be limited to whether the Committee's reasons disclose that it relied upon logically probative evidence or information leading to 'comfortable satisfaction' that:
(a)there were hydrocarbons leaking from USTs installed prior to 1988 which contributed to the contamination; and
(b)the Hendersons knew of that leakage and had the authority or power to prevent it.
I have already expressed my conclusions concerning the Committee's erroneous approach relevant to (b) above in dealing with Ground 5 of the appeal.
That said, there can be little criticism of the Committee with respect to its process of reasoning in arriving at the conclusion reflected in (a) above.
Relevantly, in support of that conclusion, the Committee among other things:
(1)Noted that no USTs had been replaced during the Hendersons' tenure as owners of the Site. [78]
[78] 2023 determination [46].
(2)Noted that when the USTs were removed from the Site in 2004, after the service station had closed, the USTs were described as having been in 'excellent condition' with 'no signs of corrosion'.[79]
[79] 2023 determination [50], [66].
(3)Considered it therefore unlikely that the USTs could have been in the ground since the 1950s, and more likely that they would have been installed at some time before 1988 replacing the original tanks which would have been there since the 1950s.[80]
[80] 2023 determination [46].
(4)Observed that preliminary and detailed site investigation reports undertaken after the USTs were removed in 2004[81] had:
[81] 2023 determination [79].
(a)identified hydrocarbon contamination in, among other places, both soil in the 'UST void' (at a depth of 4.2mbgl) and also in groundwater in that void;[82]
[82] 2023 determination [130(d)]. See also [96].
(b)revealed that the range of hydrocarbons detected:
(i)in the soil was 'related to a petrol source'; and
(ii)in the groundwater indicated that petrol was 'the major source' of contamination.[83]
[83] 2023 determination [79].
(6)Whilst noting a submission by the Hendersons that 'dips' were carried out by NYL of all USTs twice daily with no discrepancies or leaks having been observed, considered on the basis of its 'knowledge and experience' that dip testing was 'a form of stock reconciliation rather than a method to be relied upon to assess if equipment failures or leaks are occurring at a rate that may result in possible contamination' and that the accuracy of such testing was 'not sufficient to rule out a small rate of loss that could contribute significantly to contamination over a number of years'.[84]
(7)Noted that 'significant time' (i.e. more than 30 years) had elapsed since 1988,[85] and that based on:
(a)its knowledge, experience and understanding of general groundwater conditions in Western Australia, petroleum hydrocarbon leaks from service stations would likely have 'attenuated' in that time;
(b)a review of the constituents of the contamination present at the time of reporting, including the reduction in the concentration of benzene; and
(c)the (limited) evidence before the Committee,
contamination caused prior to December 1988 had naturally 'attenuated' to such an extent that any remaining contamination from before that time was 'insignificant' (i.e. <1%).[86]
(8)Excluded, also following detailed analysis, the potential for any significant 'off-site' sources of contamination.[87]
[84] 2023 determination [57]. See also the Committee's remarks, at 2023 determination [63], relating to the submission of Mr Gaze which was among other things supported by the image of a 'dipstick'.
[85] 2023 determination [40].
[86] 2023 determination [40].
[87] 2023 determination [89].
As can be seen, there was indeed evidence to support the Committee's conclusion that the contamination on the Site was partly caused by hydrocarbons leaking from USTs installed prior to 1988.
It would therefore be incorrect to suggest that its conclusion was merely based on 'conjecture or guesswork'.
Further, the Committee's analysis leading to the conclusion was both careful and extensive.
That much is apparent from the reasons when read as a whole.
It necessarily follows, in my view, not only that the Committee adequately exposed its process of reasoning leading to its conclusion that hydrocarbons leaking from USTs installed prior to 1988 contributed to the contamination, but also that its conclusion would have been arrived at with 'comfortable satisfaction'.
In all the circumstances, I would have dismissed Ground 1 of the appeal.
In saying the above, my analysis should be understood in the context of the way in which Ground 1 was put. Accordingly, I express no view as to whether, Briginshaw aside, the Committee may have otherwise erred in law in connection with the UST Faulty Installation Finding.

Apportionment findings

By Ground 2 of their appeal, the Hendersons effectively contend that having made the UST Faulty Installation Finding the Committee erroneously excluded from consideration all events prior to December 1988 in determining responsibility for remediation under s 25(3) of the CS Act.
Specifically, the Hendersons say the Committee excluded from consideration any responsibility for remediation owed by the actual installer(s) of the USTs in circumstances where, on the Committee's own findings, faulty installation was one of the two causes of the contamination upon which Committee's apportionment findings depended.
The Hendersons also contend, by Ground 6 of their appeal, that the Committee failed to give adequate reasons as to the apportionment of liability for contamination by failing to expose its path of reasoning to determine the proportions set out in its decision.
Viva Energy advances a similar contention (among others) by Ground 5 of the cross-appeal.

Not considering pre-1988 UST installer(s)

As noted earlier, the Committee in its reasons concluded that contamination on the Site caused prior to December 1988 had naturally 'attenuated' to such an extent that any remaining contamination from before that time was 'insignificant' (i.e. <1%).[88]
[88] 2023 determination [40].
However, as the Hendersons correctly contend, the Committee's finding to the above effect does not entitle the Committee to 'ignore' everything which may have occurred before 1988 in determining who might bear responsibility for remediation of the Site for the purposes of s 25(3) of the CS Act.
In this regard, the Committee not only found that one of the two substantial causes of contamination present at the Site was faulty installation of the USTs (prior to 1988), but also that the leakage from the USTs had occurred at a 'constant rate' from the time of their installation until the service station was decommissioned.
Consequently, as the Hendersons correctly submit, the Committee's recourse to 'attenuation' is 'no answer'.[89]
[89] Hendersons' written submissions dated 23 May 2024 [108].
It necessarily follows that the Committee was duty bound to have considered whether the actual installer of the USTs also bore responsibility for remediation of the Site pursuant to the CS Act (and if so to what extent).
The 2023 determination does not on its face suggest that the Committee gave any consideration to this question at all (let alone adequate consideration).
In my view, it was necessary for the Committee to have done so.
The Committee's failure to do so was, therefore, an error of law.
I would accordingly uphold Ground 2 of the appeal.

No path of reasoning / inadequate reasons for apportionment

In the 2018 judgment, Smith AJ concluded, as follows, in relation to the 2016 determination:
300 The Committee simply found that each responsible party had breached s 49 of the Environmental Protection Act and consequently had breached s 25 of the Contaminated Sites Act in each period.
301 Other than having regard to the amount of time that passed in periods 2, 3, 4 and 5 the Committee did not explain why it apportioned liability for contamination in the portions that it did. As the Committee did not disclose its path of reasoning, the court and the parties are unable to determine whether the Committee performed its statutory function according to law. As a result, the Committee erred in law.[90]
(emphasis added)
[90] 2018 judgment [300] - [301].
The above passages appear in her Honour's decision immediately below the heading '11.0 Did the Committee err in failing to give reasons for the apportionment of responsibility between the relevant parties?'.
The error identified by her Honour appears to have been in relation to findings in the 2016 determination in paragraphs which broadly correspond with, and are formulated in ways substantially similar to, the Committee's reasons at [138(k)], [139(v)] and [141(o)] of the 2023 determination.[91]
[91] 2016 determination [69(k)], [70(p)], and [72(m)], respectively.
As the Hendersons point out:
(1)There is no cogent reasoning which exposes why the Committee apportioned liability in the percentages which it did.
(2)The Committee simply identified that different 'actors' caused pollution in the relevant periods and has then apportioned liability.
(3)The task of the Committee is necessarily a comparative one.
(4)In determining how much responsibility to allocate to a person for pollution in a given period, the Committee was necessarily required to compare the actions of each such person and to determine why responsibility should have been allocated in relevant proportions.
(5)The Committee's reasons again fall short of the standard of reasoning required to demonstrate why responsibility should have been so allocated.
(6)The relevant paragraphs merely state that there was some contravention of s 49 of the EP Act, and to allocate proportions without any attempt to compare the 'severity' of the acts and omissions of each person.[92]
[92] Hendersons' written submissions dated 23 May 2024 [185] - [187].
Indeed, as Viva Energy contends, at [141(o)] of the 2023 determination the Committee simply 'announces' the apportionment at which it arrived in circumstances where it is not possible to discern the justification by considering that outcome against the rest of the Committee's reasons.[93]
[93] Viva Energy's written submissions dated 23 May 2024 [137] - [138].
That 'announcement' was made in the context of Period 4.
However, the same observation may be made with respect to the way in which the Committee dealt with Periods 1, 2 and 3.[94]
[94] See 2023 determination [138(k)], [[139(v)] and [140(s)].
I do not consider the basis for the apportionment was made any clearer by the Committee having stated, when apportioning responsibility, that the Committee had considered the length of the relevant period, the suspected extent of contamination in the period, and natural attenuation.[95]
[95] Cf. State's written submissions dated 20 June 2024 [124].
Similar statements had appeared in the 2016 determination, and Smith AJ nonetheless made the findings reflected at [301] of the 2018 judgment.

It is not presently clear to the Court why the Committee has once again made the same error of law identified by her Honour in that paragraph.
It can only be assumed that the Committee's apparent failure to have regard to her Honour's unambiguous findings in that paragraph was due to an oversight.
I would uphold Ground 6 of the appeal and Ground 5 of the cross‑appeal.

Conclusion and orders

For the foregoing reasons, I would uphold both the appeal and the cross-appeal.
There will be an order remitting the Committee's decision for reconsideration, together with these reasons, pursuant to s 78(1)(c) of the CS Act.
I will hear from the parties as to the final form of orders and on the question of costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
IL
Associate to the Hon Justice Musikanth
17 APRIL 2025