Client Update: Clarifying responsibility for contamination
26 July 2012
In brief: A recent decision of the Supreme Court of Western Australia provides insight into the decision-making process of the Contaminated Sites Committee when it allocates responsibility for remediation of contaminated sites and the approach by the Supreme Court when determining appeals from committee decisions. Special Counsel Robyn Glindemann and Vacation Clerk Claire McGowan report.
In this case, BP Australia Pty Ltd v Contaminated Sites Committee  WASC 221, BP challenged the Contaminated Sites Committee's (the committee) decision on the allocation of responsibility for remediation of a former BP service station. The service station was classified as 'contaminated – remediation required' by the Department of Environment and Conservation in July 2008. Following submissions from all relevant parties, the committee allocated responsibility to BP for 36 per cent of the required remediation of the site in 2011.
The service station was leased by BP between December 1982 and December 1997 and sub-let to Mr and Mrs Eldesouki from 1987 until the expiry of BP's lease in 1997. The committee considered contamination of the site to have occurred mostly as the result of a leaking anaconda joint (a flexible pipe forming part of the underground pipe work of the service station) between the installation of the joint in June 1992 and repair of the leak in October 1997. Further leaks in 2001 and 2003 were also found to have contributed to the contamination of the site, but, as BP's lease ended in 1997, it was not responsible for this subsequent contamination. In its submission to the committee, BP acknowledged that the terms of its lease required it to keep and maintain the premises in good and tenantable repair, but submitted that the leak in the pipe work was the result of fair wear and tear and therefore fell outside BP's obligations under the lease.
The committee gave notice of its tentative decision regarding responsibility for remediation to each responsible party in November 2010. Enclosed with this notice was an outline of the proposed allocation of responsibility; a summary of the relevant provisions of the Contaminated Sites Act 2003 (WA) (the Act); a list and description of the documents received and considered by the committee; a table setting out the different periods considered by the committee for the purpose of allocating responsibility for remediation; and the committee's tentative determinations as to the source of the contamination and responsibility for remediation. The committee allocated liability for the contamination occurring between 1992 and 1997 equally between BP and the Eldesoukis. BP were held solely responsible for failing to maintain the underground pipe work, and the Eldesoukis held solely responsible for continuing to use the pipe work while in a state of disrepair.
The committee advised the relevant parties of its final decision in July 2011. The reasons provided with the decision largely corresponded with the earlier reasons provided by the committee for its tentative decision, with the principal difference being that the date of commencement of the leak was brought forward six months to June 1992. The committee provided detailed reasons for the change of date, along with supporting documentation.
The committee is required to determine responsibility for the remediation of contaminated sites under the Act. The 'polluter pays' principle generally applies, with each party considered to have caused or contributed to the contamination responsible for remediation to the extent of their contribution to the contamination. Responsibility for remediation may be allocated to a number of parties proportionately. Under section 25 of the Act, a party is only responsible for remediation for contamination occurring before the commencement of the Act (1 December 2006) if the act or acts causing or contributing to the contamination were done without lawful authority. BP's failure to maintain the underground pipe work was considered an 'act done without lawful authority' because the committee considered that BP had caused pollution in contravention of s49(1) of the Environmental Protection Act 1986 (WA) (the EP Act). A committee decision can only be appealed on a question or questions of law, with all appeals made directly to the Supreme Court of Western Australia.
BP appealed to the Supreme Court on a number of grounds, described by Chief Justice Martin as 'prolix, repetitive and confused'.1 The court found that BP failed to identify any question of law upon which the committee erred, dismissing BP's appeal and affirming the committee's decision. Many of BP's grounds of appeal were dismissed on the basis that its allegations were not supported by the facts of the case. In considering the appeal, his Honour provided some useful commentary in relation to judicial review of decisions of the committee:
- As appeals of committee decisions are limited to a question of law, the court is not entitled to review the decision-making process of the committee beyond what is necessary to answer an appropriately identified question or questions of law.
- There is no question that an allegation of no evidence to support a factual finding gives rise to a question of law. However, once it is established that at least some evidence is available to the committee on which to base a decision, the question of whether the committee should have reached the decision under review on the basis of that evidence becomes a question of fact, and is not reviewable by the court as a question of law.
- As the committee is only able to allocate responsibility for remediation for acts done prior to the commencement of the Act if such acts are done without lawful authority, it is required to make a finding that the relevant actions could also constitute a criminal offence. However, there is no authority to conclude that, in doing so, the Commission must apply the criminal standard of proof (ie be satisfied beyond reasonable doubt) in relation to any of the matters it must determine.
- An act may be done without lawful authority if it is an act that constitutes 'pollution' under the EP Act. However, an act of a person that causes or contributes to the contamination of a site before the commencement of the Act is not likely to be an act done without lawful authority merely because it contravenes a lease or agreement not made under a written law.
- For an error of law to arise out of an alleged failure by the committee to take account of a relevant consideration, the committee must fail to take any account of the consideration, or alternatively fail to give sufficient weight to the consideration in a manner that leads to a manifestly unreasonable decision. It is not enough to allege that the committee failed to give sufficient weight to a relevant consideration. Such an allegation is a challenge to the merits of the committee's decision only, and not a question of law reviewable by the court.
- Not every finding of fact by the committee that becomes critical to their final decision is a fact upon which its jurisdiction depends. It is necessary to distinguish between facts found by the committee in the exercise of its jurisdiction, and facts on which the committee's jurisdiction relies.
- Simply identifying differences between the terms of the committee's tentative and final decisions will not be sufficient to establish a denial of natural justice when the committee has provided the affected party with an opportunity to put relevant submissions or evidence before it.
- The committee is an administrative decision-maker and there is no requirement that a legal practitioner serve on the committee. An appellate court is required to read the committee's reasons for its decisions wholly and fairly, taking account of the committee's lack of legal expertise. The question of whether the committee's reasons for a decision are adequate will turn upon the particular circumstances and facts of the case, including the background of communications between the decision-maker and affected party.
This case demonstrates the court's no-nonsense approach to appeals under the Contaminated Sites Act. It appears that the court strictly construes the right to appeal a decision of the committee under the Act on only a question of law and will have little tolerance for parties who fail to clearly identify a question or questions of law as the basis for their appeal.
- Paul LalichPartner,
Ph: +61 2 9230 4026
- Chris SchulzPartner,
Ph: +61 3 9613 8772
- Bill McCrediePartner,
Ph: +61 7 3334 3049