Developers must carefully consider the extent to which fill material is contaminated.

A recent decision of Justice Pepper in the Land & Environment Court in Wollondilly Shire Council v Foxman Environmental Development Services Pty Ltd (No 5) [2013] NSWLEC 68 will have implications for developers and landowners undertaking projects on land where fill material is proposed to be imported or re-used.

Wollondilly Shire Council sought relief against the defendants (who were involved in a development) for breaches of pollution, waste and planning legislation. The Council succeeded not only in obtaining an injunction preventing future breaches of law, but also an important remediation order whereby all fill material deposited at the development site would need to be removed. The fill material amounted to almost 16,000 cubic metres in aggregate.

The development

The defendants owned two properties, one upon which they operated a waste processing and storage facility (the BBR property) and another, upon which they proposed to undertake a residential development (the premises).

On 16 March 2009, the defendants obtained a development consent in respect of the premises permitting a "single storey dwelling, detached garage, pool, spa, water tanks and fire trail".

From late September 2009 to March 2010, the council conducted a number of inspections of the premises. These inspections revealed a number of fire trails which had been created using a large quantity of fill material. The evidence indicated that the fill material originated from the BRR property and consisted of recovered construction and demolition waste.

The defendants conceded that most of the fire trails and the use of fill material were not authorised by the development consent. They argued however that there was a public interest in reuse of waste material and it would be appropriate to keep the fill material on the premises.

The Court found that the fill material constituted waste and that the defendants had contravened a number of provisions of the Protection of the Environment Operations Act 1997 in transporting the waste from the BRR property to the premises, unlawfully using the premises as a waste facility and pollution of land and waters. In addition, the defendants were found liable for breaches of the Environment Planning and Assessment Act 1979 and the Water Management Act 2000.

The defendants also tried to rely on various waste exemptions but the Court held they could not apply due to the elevated levels of asbestos, lead and other foreign material contaminants contained in the fill material. A key issue in the proceedings was whether the Court ought to order removal of only some of the fill material or all of it.

The Court's discretion

The Court's power to make orders for remediation is quite broad. Among other things, the Court balances the public interest in ensuring compliance with the law against the expense or inconvenience that flows from compliance (Warringah Shire Council v Sedevic (1987) 10 NSWLR 335).

In this case, there were two main issues for determination:

  • the degree of contamination of the fill material; and
  • the appropriate method for managing the contamination.

The evidence

The evidence showed that the fill material contained some bonded asbestos on its surface areas, and the average concentration of lead in the fill exceeded maximum prescribed levels. However, the expert evidence was divided as to the extent of asbestos and lead contamination and the way to go about managing the contaminated material.

On the one hand, the defence expert said that the asbestos was confined to surface areas and the presence of lead was concentrated in certain hotspots. In the defence expert's opinion, the removal of surface asbestos and the hotspots would effectively remove contaminants from the fill. There would be no need to remove the remaining fill material.

On the other hand, the council's expert (which the Court preferred) opined that surface samples were a reflection of contamination levels throughout the fill material. This was, amongst other things, because:

  • the fill material was relatively homogenous and from the same source;
  • asbestos had been observed below the surface on the fill batters;
  • there had been no extensive testing of fill material beyond the surface to conclude that asbestos was only confined to the surface and the earthmoving equipment used to place the fill on the land would have mixed it and distributed the asbestos throughout the fill profile; and
  • samples of material at the BBR property revealed the presence of asbestos.

Since the material had been collected from the BBR property and deposited at the premises, without any effort to identify and separate contaminants, there was a likelihood that surface samples were a reflection of the whole of the fill material.

The Court recognised that reuse of waste material, such as fill in development sites, provides a genuine public benefit. However, in determining whether or not the fill should remain on the premises, the Court had regard to the precautionary principle, ie. that caution should be exercised where there is uncertainty concerning the nature and scope of environmental harm.

The Court found that the earthmoving works needed to remediate the fill and also stabilise and re-compact the fill created a risk that the bonded asbestos would be disturbed and broken down further, potentially releasing harmful asbestos fibres. In addition, while entombment was possible it would be difficult because of the nature of the soils, ridge lines and valleys. Further, in removing just surface asbestos and the lead hotspots, it was possible that contaminants deeper in the fill would be displaced.

In light of these circumstances, the Court ordered that all of the fill material needed to be removed.

Implications for developers and landowners

On the facts of this case, there was no evidence before the Court of airborne asbestos fibres or actual harm to human beings. Nevertheless, it ordered complete removal of the imported fill material exercising the precautionary principle.

The Court's decision is instructive for developers, consultants, contractors, landowners and anyone else who needs to either dispose of or use fill material (which may contain some residual contamination). Sufficient sampling of the fill material needs to be undertaken to identify the extent of any contamination and any risk of harm to humans and the environment if it is to be re-used; or classify it for waste disposal purposes. It is also important to remember that once fill material leaves the premises, there are various waste, planning and pollution laws that need to be complied with.