Waroona Resources Pty Ltd v Chief Executive Officer, Department of Water and Environmental Regulation - [2022] WASC 174

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   WAROONA RESOURCES PTY LTD -v- CHIEF EXECUTIVE OFFICER, DEPARTMENT OF WATER AND ENVIRONMENTAL REGULATION [2022] WASC 174
CORAM:   MASTER SANDERSON
HEARD:   5 MAY 2022
DELIVERED          :   18 MAY 2022
PUBLISHED           :   18 MAY 2022
FILE NO/S:   CIV 1096 of 2022
BETWEEN:   WAROONA RESOURCES PTY LTD
Plaintiff
AND
CHIEF EXECUTIVE OFFICER, DEPARTMENT OF WATER AND ENVIRONMENTAL REGULATION
First Defendant
MINISTER FOR THE ENVIRONMENT
Second Defendant

Catchwords:

Statutory interpretation - Whether plaintiff licensed to dispose of asbestos waste and if so how - Turns on own facts

Legislation:

Environmental Protection (Controlled Waste) Regulations 2004 (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)

Result:

Declarations made as asked by plaintiff

Category: B

Representation:

Counsel:

Plaintiff	:	S Penglis SC & P Dobson
First Defendant	:	PD Spragg
Second Defendant	:	PD Spragg

Solicitors:

Plaintiff	:	Hotchkin Hanly
First Defendant	:	State Solicitor's Office
Second Defendant	:	State Solicitor's Office

Cases referred to in decision:

Eclipse Resources Pty Ltd v State of Western Australia [No 4] [2016] WASC 62
Eclipse Resources Pty Ltd v The Minister for Environment [No 2] [2017] WASCA 90

MASTER SANDERSON:

The issue raised in these proceedings is the proper construction of reg 5(1)(i) of the Waste Avoidance and Resource Recovery Levy Regulations 2008 (WA) (Levy Regulations). More particularly, the issue is whether the waste level exemption applicable to 'asbestos containing material' (ACM) under the Levy Regulations applies to soil and/or sand mixed with ACM where it is not reasonably practicable to separate the ACM from soil and/or sand.
The relevant facts were agreed between the parties. They were summarised in par 4 of the plaintiff's written submissions. That paragraph reads as follows:
In summary:
(a) The plaintiff is the registered proprietor of property situated at Richards Road, Waroona, being Lot 15 on Deposited Plan 59265 (Premises).
(b) The plaintiff is the holder of licence 8651/2012/1 (Licence) under Part V, Division 3 of the Environmental Protection Act 1986 (WA) (EP Act).
(c) The Licence allows the plaintiff to undertake the activities of landfilling, waste processing and crushing and screening of building material at the Premises.
(d) In July 2019, the Department of Water and Environmental Regulation (DWER) granted the plaintiff exemption from payment of the landfill levy under regulation 5(1)(i) of the Levy Regulations in relation to the acceptance and burial of ACM for the period of 1 July 2019 to 30 June 2020 (Exemption Period).
(e) During the Exemption Period, the plaintiff lodged with DWER returns for the periods 1 October 2019 - 31 December 2019, 1 January 2020 - 31 March 2020 and 1 April 2020 - 30 June 2020.
(f) Each of those returns identified a volume of waste claimed as being exempt from the payment of the landfill levy which would otherwise have been payable under the Waste Avoidance and Resource Recovery Regulations 2008 (WA) (RR Regulations), namely loads of soil and/or sand received at the Premises which contained ACM (Material).
(g) In November 2021, Ms McEvoy, the Director General of DWER wrote to the plaintiff rejecting the plaintiff’s claim that the Material was exempt from the payment of landfill levy.
(h) After correspondence passing between Ms McEvoy and the plaintiff’s solicitors, Hotchkin Hanly, the plaintiff commenced these proceedings.
The regime imposing the waste levy arises from an interlocking scheme of provisions contained in a number of Acts and Regulations. This regime was comprehensively dealt with in Eclipse Resources Pty Ltd v The Minister for Environment [No 2] [2017] WASCA 90 [77] ‑ [110]. The object and purpose of the legislative scheme is identified in Eclipse Resources Pty Ltd v State of Western Australia [No 4] [2016] WASC 62 at [510] ‑ [513], [563] and [568].
The imposition and payment of the levy are provided for in s 4(1) and s 4(2) of the Waste Avoidance and Resource Recovery Levy Act 2007 (WA) (Levy Act). These sections relevantly provide:
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.
(2A)The Waste Authority may provide advice to the Minister for the purpose of making a recommendation under subsection (1) as to the amount by way of levy to be prescribed.
(2B)The Minister must give due weight to, but is not bound to accept, the advice of the Waste Authority under subsection (2A).
(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 of the Levy Act imposes the levy through regulations. It reads as follows:
5. Levy imposed
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 of the Levy Act relevantly identifies the person who is liable to pay the levy as the holder of a licence in respect of disposal premises. Section 76 of the Waste Avoidance and Resource Recovery Act 2007 (WA) (WARR Act) provides that if an amount of levy remains unpaid after the day on which it becomes due for payment there is a penalty payable to the Minister in addition to the levy calculated at the rate of 20% per annum upon the amount of the levy remaining unpaid. By s 77 of the WARR Act, both any unpaid levy and any penalty may be recovered by the Minister as a debt.
By reg 4, subject to any exemptions that may be granted under reg 5, the Levy Regulations apply to:
(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; and
(c)return periods commencing on or after 1 July 2008.
'Landfill premises' is defined in reg 3 to mean:
(a)a licence to 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 licenced landfill.
A 'licenced landfill' is defined in reg 3 to mean:
Premises specified in category 63, 64 or 65 of Schedul1 to the Environmental Protection Regulations 1987 in respect of which a licence is held.
Regulation 5 of the Levy Regulations sets out various scenarios in which an application may be made to the CEO of DWER for an exemption for waste received at licenced landfill. Relevantly, reg 5(1)(i) provides an exemption for:
Asbestos containing material if the material is -
(i)taken to a licensed landfill otherwise than in contravention of the Environmental Protection (Controlled Waste) Regulations 2004 and reg 44; and
(ii)buried at the licenced landfill in compliance with the conditions on the licence.
'Asbestos containing material' is defined by reg 5(1A) to mean:
Any manufactured material or thing that, as part of its design, contains asbestos.
Regulation 44 of the Environmental Protection (Controlled Waste) Regulations 2004 (WA) (Controlled Waste Regulations) is in the following terms:
44.Asbestos for disposal to be separated, wrapped and labelled
A person who takes material containing asbestos to a waste facility or to a place approved by the CEO under regulation 46(a) which is not -
(a)separated from other material for disposal where that is reasonably practicable; and
(b)wrapped or otherwise contained in a manner that prevents asbestos fibres entering the atmosphere during transportation on a road; and
(c)labelled or marked with the words 'CAUTION ASBESTOS' in letters not less than 50 mm high,
commits an offence.
The plaintiff conceded for the material to be exempt from the levy, a number of preconditions had to be met. These were not in dispute. In particular, it was not in dispute that it was not reasonably practicable to separate soil and/or sand and the ACM in the material. The plaintiff and defendant referred to reg 5(l)(i) of the Levy Regulations and reg 44(a) of the Controlled Waste Regulations. The sole issue then in these proceedings was the proper construction of reg 5 of the Levy Regulations with respect to the material. Nor were the principles of statutory construction in dispute. The parties agreed these were summarised in Eclipse at [537] ‑ [551].[1]
[1] Eclipse Resources Pty Ltd v State of Western Australia [No 4] [2016] WASC 62.
The plaintiff approaches the position in this way. It says the ACM contained in the material is exempt from the levy if it is:
(a)taken to the premises in conformity with reg 44 of the Controlled Waste Regulations; and
(b)buried in the premises in compliance with the conditions on the licence.
The plaintiff says that conclusion cannot change simply because the ACM is intermixed with material that, on its own, is not otherwise exempt and in circumstances where it is not reasonably practicable to separate them. The plaintiff accepts the legislative regime does not specifically deal with this situation. The plaintiff says however this is consistent with the aims of the regime. Where it is reasonably practicable to separate the ACM, that must be done. But if it is not practical to separate the material, then it is the clear legislative intent that the whole of the material should be exempt.
The defendant adopts what might be described as a purposive approach to this issue. It notes the plaintiff's construction of reg 5(1)(i) of the Levy Regulations reads back into the purpose of reg 44 of the Controlled Waste Regulations then infers that the reference to reg 44 operates to ensure that a licensee can claim the exemption in respect of ACM delivered to its site.
The defendant says the purpose of reg 44 of the Controlled Waste Regulations is the safe transport of 'material containing asbestos' as defined under reg 42 of the Controlled Waste Regulations. It gives effect to this purpose by making it an offence to transport asbestos in a manner where the asbestos material itself is not separated out where possible, packaged and labelled clearly so that people handling the material are protected from the dangerous fibres and are aware the material itself is dangerous.
The defendant submits transporting ACM in compliance with reg 44 will result in either ACM being delivered separately or ACM being delivered mixed with other material from which it is not reasonably practicable to separate. The defendant says it does not follow from the fact that safely transmitting waste in accordance with reg 44 of the Controlled Waste Regulations may sometimes be convenient for the licensee, when estimating an amount of ACM for the purposes of claiming the exemption, that the operation of reg 5(1)(i) should be expanded beyond the wording of the provision so that whenever ACM is transported to landfill without committing an offence against reg 44 if the entire load, whether mixed or not, is exempt.
In my view, the plaintiff's interpretation of the regime is to be preferred. I accept this results in entire mixed loads being exempt from the levy. But I see no alternative to that approach. Something must be done with a mixed load. It contains asbestos and therefore it is dangerous. It is not practical to separate the ACM from other material. The logical way to deal with that material is exempt the load and bury the waste. The plaintiff has attempted to estimate the amount of the ACM in each load and has complied with the letter of the regulations.
The plaintiff is entitled to the declaration it seeks. Subject to hearing from the parties within seven days of the date of publication of these reasons, I will make orders in terms of pars 1 and 2 of the originating summons.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MM
Associate
18 MAY 2022