Waste Avoidance and Resource Recovery Act 2007
Waste Avoidance and Resource Recovery Levy Act 2007
WARR Regulations 2008
WARR Levy Regulations 2008
Questions and Answers
The following are questions and answers in relation to the two WARR Acts, the two sets of WARR Regulations.
Please note: The following answers should not be taken either as legal advice or as a substitute for professional legal advice. Should you have questions of a legal nature, they should be directed to your solicitor or legal practitioner.
Question 1: What impacts will the WARR Acts and WARR Regulations have on local governments?
Answer:
For now, there are no immediate changes required in the way that local governments should conduct their waste services, other than taking into account the previously announced levy increases, effective 1 July 2008 and 1 July 2009, for category 64 and 65 landfills.
Changes in the way waste business is done in Western Australia will occur progressively as the waste strategy and related policies of the Waste Authority are developed, published and implemented. In general, these policies will be aimed at progressively reducing the amount of waste generated, increasing the amount of material recovered from waste streams for recycling or reuse, and reducing the amount of waste which is finally disposed of to landfill.
For local governments, the change from waste services being provided under the Health Act to being provided under the WARR Act should mean “business as usual” for now. The WARR Act provisions actually give local governments more discretion and flexibility in the services they may wish to provide, and in the fees and charges they consider appropriate.
Question 2: What impacts will the WARR Acts and WARR Regulations have on small rural single and/or regional local governments?
Answer:
The WARR Levy Regulations 2008 apply only to landfills in the (Perth) metropolitan area (see WARR Levy Regulations 2008 subregulation 4(2)) which receive waste (WARR Levy Regs 4(1)(a)), or to waste collected with the metropolitan area and is received at premises outside the metropolitan area (WARR Levy Regs 4(1)(b)).
Therefore, if a local government or regional council does not accept waste from the metropolitan area, and/or does not send waste to a landfill in the metropolitan area, the WARR Levy Regulations do not apply.
With respect to the WARR Regulations 2008, local governments should note the extended meaning of "local government waste" Regulation 4.
Part 2 - Waste Collection Permits (on page 2 of the WARR Regs 2008) would only apply in quite rare circumstances (as set out in the WARR Act 2007, Division 2, pages 33 to 35).
The WARR Regulations 2008, Part 3 - Landfill Levy - only apply if a local government or regional council operates a landfill in the metropolitan region, accepts waste from the metropolitan area, and/or sends waste to a landfill in the metropolitan area.
Part 4 on page 14 of the WARR Regulations 2008 relating to waste plans should also be noted.
Question 3: If a small rural local government accepts waste from a metropolitan area will the rural local government be liable for a levy?
Answer:
Yes. However, no local government (regardless of whether it has to pay a levy or not) has to pay a financial assurance (see WARR Levy Regulation 7, on page 5).
The small rural council should refer to the Landfill Levy Administration Policy 2009 for information about how to calculate the amount of landfill levy due.
Question 4: If a small rural local government sends its waste to a landfill in the Perth metropolitan area, is it liable to pay a levy?
Answer:
In effect, yes. The operator of the landfill in the (Perth) metropolitan region receiving that waste would have to pay the levy on that waste, and invariably the amount of the levy is passed on to the entity providing the waste. So, the landfill operator has to pay the levy and would then normally pass on the costs of the levy (and possibly also on-costs) in its charge to the local government which sent the waste - either passed on within the tax invoice or included within the gate fees paid by the delivery truck driver.
Question 5: Is there anything in the Regulations that rural local governments need to consider?
Answer:
Yes. See answers to Question 2 above. Also, this may be a matter where it would be prudent to obtain a legal opinion from your legal advisers - that is, to have your own legal advisers examine the WARR Act 2007, the WARR Levy Act 2007, the WARR Regulations 2008 and the WARR Levy Regulations 2008, and give you specific advice on how these affect your legal obligations.
Question 6: When would waste collection permits be issued by the CEO?
Answer:
Only very rarely. The WARR Regs Part 2 - Waste Collection Permits (on page 2 of the WARR Regs) would only apply in most likely quite rare circumstances (as set out in the WARR Act 2007, Division 2, pages 33 to 35). Sections 56, 57, 58 and 59 of the WARR Act sets out what those circumstances would be.
Question 7: Will regional waste management plans which follow the strategic waste management plan template issued by the Department of Environment and Conservation (DEC) cover all the items for a waste management plan as described in the WARR Act and WARR Regulations?
Answer:
To an acceptable degree, it is expected that regional waste management plans which follow the DEC’s strategic waste management plan template would be adequate as waste management plans described in the WARR Act (section 40) and the WARR Regulations (regulation 20).
Strategic waste management plans should be developed after reading the template documents issued by DEC, the WARR Act section 40 which relates to “waste received by the local government” and WARR Regulation 20 which relates to “waste generated by the operations of the local government”.
At this time, there is no requirement for a local government to have a waste plan. However, the fact the waste plan provisions are in the WARR Act (sections 40 to 44 inclusive), and that “The CEO may by written notice require a local government to include within its plan for the future a waste plan outlining how, in order to protect human health and the environment, waste services provided by the local government will be managed to achieve consistency with the waste strategy” implies a clear expectation that each local government would develop a waste plan, and at some time in the future may be required to have one. Hence, the Waste Authority has been providing funds to local governments to assist them develop their strategic waste management plans.
Note that if the CEO ever intends to issue a notice to a local government requiring a waste plan of a specified nature, the CEO must consult with local government and have regard to its views, and if the local government so requests consult with the Waste Authority and have regards to its views. Also, any local government which is aggrieved by such a notice, issued by the CEO under section 40(4) of the WARR Act, may apply to the State Administrative Tribunal for a review of the notice.
Question 8: Is a small rural local government exempt from paying the landfill levy and/or the financial assurance on waste received at its landfills?
Answer:
Any local government receiving metropolitan waste into its landfill must pay the levy. No local government pays the financial assurance.
With respect to the financial assurance, WARR Levy Regulation 7(1) means that any local government which is a licensee (meaning the holder of a licence in respect of a licensed landfill, and to which the regulations apply – see WARR Levy Regulation 4(1)) is not required to pay a financial assurance.
Therefore, no local government in WA pays a financial assurance regardless of whether they are licensee to which the regulations apply or not.
Hence, it is not so much a case of a small rural local governments being exempt from paying a financial assurance under the WARR Acts and WARR Regulations, as it not being a requirement of the small rural local government in the first place.
The local governments which must pay the levy are those local governments which operate licensed landfills AND receive waste collected within the Perth metropolitan area (see WARR Levy Regulation 4(1)).
Hence, if licensed landfills operated by a small rural local government do not receive waste which was collected within the Perth metropolitan area (see WARR Levy Regulation 4(2)), that local government does not pay any levy.
If the rural local government is only disposing of its own and/or its local waste to landfill, the current situation is that the local government does not come into any of the classes which have to pay a levy on this waste going into its landfills, and also does not come into a class which means it should pay a financial assurance.
The situation would be different if that local government was receiving waste collected in the metropolitan area. In that case, the local government would have to pay the levy on that waste collected from within the metropolitan area being disposed of to the rural local government’s landfills.
The small rural council should refer to the Landfill Levy Administration Policy 2009 for information about how to calculate the amount of landfill levy due.
Question 9: Now that local government waste services come under the WARR Act, rather than the Health Act 1911, do we have to remake all of our local laws or are they still valid?
Answer:
The local laws are still valid and remain effective. Any local law made by a local government under the relevant section of the Health Act, in relation to waste services, continues to be of effect as if it were made under the WARR Act and may be amended or repealed accordingly. See WARR Act Schedule 5, clause 3 for details.
Question 10: Now that local government waste services come under the WARR Act, rather than the Health Act 1911, do we have to re-fix our fees and charges or are they still valid?
Answer:
The fees and charges are still valid and remain effective. Any charge fixed under the Health Act imposed per waste receptacle, or fee or charge for the removal of refuse fixed by resolution by a local government, continues to be of effect as if it were a fee or charge imposed by the WARR Act or prescribed by a local law under the WARR Act. See the WARR Act, Schedule 5, clause 4 for details.
Question 11: Now that local government waste services come under the WARR Act, rather than the Health Act 1911, do we have to start collecting GST to pay GST to the Australian government?
Answer:
No. There is no GST to be paid either on local government waste services coming under the WARR Act, or on a local government’s establishment fee/ establishment charge for compulsory rubbish collection service pursuant to the Local Government Act 1995.
Therefore, WA local governments should not include a GST component in their fees and charges for these services.
On 1 July 2008, the Australian Government gazetted a GST determination which grants WA local governments (Schedule 1, Part 5) a GST exemption for:
| Determination No. | Item |
| 34.14 (page 374) | Waste Service Charges – Waste Avoidance and Resource Recovery Act 2007 – fee for the collection, transport, storage, treatment, processing, sorting, recycling or disposal of waste by local government. |
| 34.26 (page 375) | Waste Receptacle Charges - Waste Avoidance and Resource Recovery Act 2007 – fee for the provision of waste receptacle and the collection, transport, storage, treatment, processing, sorting, recycling or disposal of waste by local government. |
| 34.37 (page 376) | Establishment fee – Local Government Act 1995 – Establishment charge for compulsory rubbish collection service. |
