WA Supreme Court decides that a determination of responsibility can't be made after a site has been cleaned up

In a recent single judge decision, Caltex Australia Petroleum Pty Ltd v Contaminated Sites Committee [2017] WASC 155, the WA Supreme Court found that the Contaminated Sites Committee had no jurisdiction under the Contaminated Sites Act 2003 (WA) to determine responsibility for remediating a site after the site had already been cleaned up. This was because the Committee's power to make such a determination only lasted while the site required remediation. Once remediated, the Committee had, in effect, nothing to determine.

The site, the classification, and the remediation

Caltex Oil (Australia) Pty Ltd leased the site for 25 years. In 2009 the site was classified as "possibly contaminated - investigation required". The landowners applied to the Committee for a determination of responsibility under the Contaminated Sites Act. However, the Committee stated that it could not determine responsibility until the site was classified as "contaminated - remediation required". This occurred in January 2012.

There was a period of non-communication, but the landowners confirmed their desire for the Committee to determine responsibility during a phone call in April 2014. However, before the Committee made its determination, the site was reclassified as "remediated for restricted use", following remediation by the landowners.

The Committee considered that the landowners had already lodged their application through the phone call in April 2014, so the change in the site's classification did not remove its jurisdiction. The Committee notified Caltex that it was determining responsibility based on when the site was classified as "contaminated – remediation required". Caltex challenged the Committee's power to make this determination.

What does the Contaminated Sites Act say?

The Judge relied on Part 3 of the Contaminated Sites Act which provides that only sites classified as "contaminated – remediation required" need remediation. He also looked to the definition of "person responsible" which confines itself to sites classified as "contaminated – remediation required".

Following this analysis, the Judge held that the Committee was limited to allocating responsibility to sites classified as "contaminated – remediation required". Once a site, as here, was reclassified as "remediated for restricted use", the Committee no longer had the power to determine who is responsible for remediation.

The Judge arrived at this position despite section 56 of the Act providing that a person who is not responsible for remediation of a site may claim their costs (including costs incurred in remediation) from the person who is responsible.

Business implications for contaminated sites in WA

This decision may lead to instances where those who want to remediate a site will delay taking action until the Committee determines responsibility.

Any determination as to responsibility must be carried out while the land is classified as "contaminated – remediation required".

If steps are taken to rehabilitate a site which changes the site's classification from "contaminated – remediation required" before the Committee determines responsibility, then the party will bear the cost of remediating the site, even if they have not caused or contributed to the contamination.