Environmental Law

Environmental Law

Our environmental lawyers provide commercially focussed advice on environmental law (including water and waste law) issues in Western Australia.

Water

Landowners and occupiers have certain water law rights to control and use water resources located on, below or adjoining their land. At common law, “riparian” water rights grant to a landowner the right to reasonable use of water flowing on or adjoining their land. This common law right to water also extends to use of static groundwater and surface water on the land.

The landowner’s common law rights to water still exist and are still relevant, but have become limited by statute-based water control and management laws. In Western Australia, the Rights in Water and Irrigation Act 1914 (WA) (the Act) governs a WA landowner’s rights in water resources on or adjoining their land.

A landowner or occupier has, subject to any restrictions in the Act, a right to take surface water or water from waterways on or adjoining their land for the following purposes:

  1. domestic use;
  2. watering stock; or
  3. irrigation of small gardens.

In Western Australia, the vesting of rights to water in the Crown, subject to local by-laws and the Act, does not prevent a landowner or occupier of land from:

1.     draining the land;

2.     making any dam or tank on the land, not on a watercourse or wetland, provided it does not:

a)     diminish the flow of water in a watercourse or the amount of water in a wetland; or

b)     significantly adversely affect the quality of water or any ecosystem in a watercourse or a wetland.

We can assist you to understand water law, including the impact and operation of water legislation and regulation upon your water rights and dealing with the Department of Water in relation to licences to take water from bores. We can provide you with commercial and practical advice on this complex and increasingly important area of the law.

A related issue is the limitation on the right to develop land which may constitute a wetland (see our Planning & Development section).

Waste

They say one person’s trash (waste) is another person’s treasure, but what properly falls within the current concept of ‘waste’ and how can something be properly classified as ‘waste’? These are difficult concepts for the legislature and courts to grapple with. What is considered to be waste has evolved over time and has become recognised as a transitional and ever-changing concept.

Environmental legislation and regulation in each state and territory in Australia contains different definitions of the term ‘waste’. One common element of each definition is that waste is a substance that is “discharged” or “discarded” including matter whether “useful” or “useless”. But can one person’s waste stop being waste in the hands of another? Recent case law has gone both ways on this question, illustrating the complexity of the topic.

Each state and territory in Australia has strict regulatory mechanisms controlling the release of waste into the environment, whether by way of licences, permits, authorisations or otherwise. These regulations may appear to be aimed at protecting the environment from pollution but are also driven by the twin objectives of revenue raising and encouraging re-processing of discarded material rather than dumping it. But if a particular substance is not waste, should the disposal or release of it rightfully require a licence, permit or authorisation? The curious interplay between the Waste Avoidance and Resource Recovery Legislative regime and the Environmental Protection Act in Western Australia is a matter currently being considered by the courts.

Our environmental lawyers have experience in dealing with issues and complex disputes involving Australian environmental legislation and regulation, including the waste regime in Western Australia. We can assist you in determining whether or not particular environmental regulatory mechanisms apply to you and your business.

A helpful tip: if your business engages in environmental protection activities the capital and revenue expenditure it incurs can be tax deductible. If you need assistance concerning any tax issues/objections, including relating to whether an activity can be considered to fall within the definition of “environmental protection activities”, our environmental lawyers are ready to assist.

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26th March 2018

Introducing Riaan Piek, Litigation Counsel, who recently joined the firm to bolster Fletcher Law’s expanding litigation capacity with his 20 years’ experience as a lawyer advising on risk and the prevention, minimisation, control, balance and management of its consequences. Whilst Riaan has been a commercial litigator for most of his professional life, he has a... read more

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