I thought a recent case in the Land and Environment Court was significant enough in its findings to warrant revisiting this subject. We’ve discussed the council controls associated with earthworks on several occasions (Feb 2019, Jun 2012, Sep 2011), but I’ve never quite gone as far as discussing the point at which earthworks might be classified as illegal dumping, a much more serious issue than simply unapproved works.
Suffice to say that the importation of more than 100m3 of fill without any specific purpose is unlikely to be approved by any consent authority and will thus invariably constitute illegal dumping, regardless of the ‘quality’ of the material involved. The case at point, however, was fairly blatant, both in the extent of the activities involved and the refusal of the offending individual to acknowledge the many attempts made by council to address the situation.
A 100m3 limit, on the importation of fill without council consent, was introduced a few years back following a case in a neighbouring LGA where an earthmoving contractor purchased a rural property and proceeded to use it as a dumping site for material excavated in the course of conducting his business. He managed to avoid compliance action at the time by ensuring that the material was spread out so as to never exceed the 600mm depth limit that would trigger the requirement council approval.
In the present case, the offender proceeded down a similar path, dumping several thousand cubic metres of material on the property over a period of several years, in spite of notices from council to cease the activity.
In finding in council’s favour, the court ordered the defendant to:
- Immediately cease using the Land for the disposal of Materials;
- Within 28 days install and maintain erosion and sediment controls to contain the movement of sediment off the Land;
- Within four months, remove all Materials and other waste from the Land;
- Within one year of the date of these orders, restore the Land as near as possible to the condition it was at the importation and placement of the materials thereon.
Failure to comply could lead to fines of up to $5 million and/or a custodial sentence. This was no inconsequential smack on the hand but, with the rising costs of waste disposal, this sort of illegal dumping has become a serious problem in our rural areas.
The reader might be interested to know that the property in question is currently listed for sale. While the ultimate responsibility for remediation works rests with the subject individual regardless of any sale, and the relevant details would be articulated in a Section 10.7 Planning Certificate (formerly a Section 149 Certificate), which any prospective purchaser should request from council as a matter of course, this is very much a case of buyer beware. As the new land owner, you might not be directly responsible for the remediation works, but you will certainly be caught up in any necessary compliance activities and could be seriously limited in how you are able to use this piece of real estate. At the end of the day, there’s only so much that council can do if people, or their legal representative, do not seek out all relevant information before proceeding with a property purchase..
As a corollary to this scenario, council has become aware of contractors who, when asked to undertake work on a property, suggest that fill will be required to complete the project at hand. This opportunity is then used to dump waste material, perhaps when fill is not even required. Note that it is the land owner’s responsibility to verify the source of any fill coming onto their property and to secure council approval if it is required. In general, any imported fill should be what is known as virgin excavated natural material (VENM), or in some circumstances just excavated natural material (ENM). The EPA provides guidance for landholders in this regard (see Filling your land? Make sure it’s legal).
As a footnote, the high resolution, historical time series aerial imagery that is available today from providers like Nearmap, even the lower resolution imagery freely available through Google Earth, make it a trivial exercise for anyone, let alone a government agency, to track changes to both structures on and the general landscape of a property. It’s pretty difficult to argue against evidence like this if a matter goes to court, especially if it’s backed up by a paper trail documenting attempts to resolve associated matters in a more constructive manner.