The Supreme Court of Western Australia has halved a fine imposed on a South West earthmoving and demolition company that stockpiled asbestos-contaminated building waste on rural land. In Anstee Earthmoving Pty Ltd v City of Busselton [2026] WASC 439, Justice Whitby set aside a $182,000 penalty imposed in the Magistrates Court and resentenced the company to a $90,000 fine. The decision was reported in early October 2026.
The fine was cut, but operators shouldn't read too much into that. The case was not brought by WorkSafe or the environmental regulator. It was a local council prosecution under planning law. That is a compliance risk many asbestos and demolition businesses don't plan for.
What happened at Carbunup River
Anstee Earthmoving runs an earthmoving, demolition and wastewater business from part of a leased rural property at Carbunup River, within the City of Busselton. An earlier approval allowed natural materials to be stored on the site. In 2022, however, the City told the company that storing building waste there was not permitted.
In April and May 2024, after a tip-off and drone flights, City officers found six stockpiles of building waste about three metres high. The stockpiles held timber, piping, glass, concrete, plasterboard and bricks. Testing later showed asbestos in 11 of the 13 samples taken. After speaking with officers, the director arranged a burn permit and the stockpiles were burned the next day, which damaged the asbestos-containing material and released fibres into the air.
The charge and the original $182,000 fine
The City originally laid four charges, and three were dismissed. The company pleaded guilty to one charge of unauthorised use of rural land under s 218(b) of the Planning and Development Act 2005 (WA), covering 53 days from 1 April to 23 May 2024.
The maximum penalty for a company is $1 million, plus up to $125,000 for each day the offence continues. That is five times the individual maximum of $200,000, which was raised from $50,000 in 2011. The magistrate gave a 20% discount for the early plea. She found the breach partly inadvertent and partly flagrant, substantial in scale and commercial in nature, and aggravated by the release of airborne asbestos fibres. She treated general deterrence as paramount and imposed a $182,000 fine plus $3,000 in costs.
Why the Supreme Court halved it
On appeal, Whitby J agreed that deterrence matters for commercial offenders and that penalties must not become an acceptable cost of doing business. That is the same principle that drove the $340,000 Renex penalty in Victoria. The court also accepted that the commercial nature of the operation and the release of asbestos fibres were real aggravating features.
The court found, however, that the offending showed a lack of care rather than flagrant disregard of the law. The company was on notice of the breach only in the last few days of the 53-day period. The court compared it with earlier WA planning cases where offenders continued for hundreds of days after being warned, or ran deliberate large-scale operations that affected neighbours. Measured against those cases and the maximum, and taking into account the early plea, the lack of prior offences, minimal impact on neighbours and the clean-up of the soil at the company's own expense, the court found $182,000 manifestly excessive. The magistrate's $3,000 costs order was left in place.
The court also rejected the City's argument that fines from older cases should be scaled up in proportion to the post-2011 maximum. The City said that approach pointed to a range of roughly $467,000 to $800,000. The court held that sentencing is not a mathematical exercise and that comparable cases are a guide, not a formula.
What this means for operators and duty holders
- Councils can prosecute. Storing demolition or building waste on land not approved for that use is a planning offence in its own right, separate from any WHS or environmental breach. The maximum for a company is $1 million.
- A council warning sets the clock. The gap between careless and flagrant came down to when the company was on notice. Once you are told a use isn't permitted, keeping it going is what pushes fines toward the top of the range.
- Never burn mixed demolition waste. Burning stockpiles that contained asbestos released fibres and was treated as an aggravating factor. Suspect material should be sampled and sent to a licensed facility, not disposed of on site.
- Check your yard approvals. If your depot holds approval for natural materials only, building waste stored there may be an unauthorised use, however temporary.
- Early response counts. An early guilty plea, a clean record and remediation at your own expense together helped halve this fine.
Even after the appeal, $90,000 is a significant penalty for a regional business, and it comes on top of clean-up and legal costs. Getting the material to a licensed facility would have cost far less.
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