Contamination sites mapped out – and how the States are ramping up compliance

NSW

THIS year major reforms to the Protection of the Environment Operations Act (POEO Act), gave the NSW EPA new powers of investigation and the ability to issue public warnings and order cleanup actions. 

The new Bill was passed in March, after election promises were made by the NSW Labor Government to strengthen environmental protection, and in light of the recent distribution of asbestos-contaminated mulch across 340 sites within NSW.

The Bill grants the NSW EPA enhanced powers with the authority to issue and enforce environment protection notices, and gives the body stronger powers to investigate individuals and corporations accused of violating environmental law.

In NSW it is incumbent on the landowner to disclose to the EPA instances of contamination on their land and failure to do so can result in fines and other penalties.

It is also the responsibility of the landowner when selling their property to disclose any known contamination – failure to do so could constitute a breach of the vendor’s obligations under common and consumer law. A purchaser may also claim the cost of remediating any contamination and any other losses as a result of any non-disclosure. 

Meanwhile the recent NSW Environment Protection Legislation Amendment (Stronger Regulation and Penalties) Act 2024 has doubled penalties for those found guilty of environmental crime and pollution offences, ensuring NSW has the toughest anti-pollution laws in Australia.

The maximum penalties for the most serious offences – where an offence is committed wilfully – has jumped to $10 million for corporations and $2 million for individuals.

Since the POEO Act was enacted in 1999, the NSW EPA has used its powers to bring polluters to task.

“Close to 1,500 environmental crimes have been prosecuted by the EPA under the Act and Regulations since 1999, with very significant fines being imposed on some wrongdoers,” says NSW EPA Director Legislation and Legal Advice, Melinda Murray. 

“In other cases, individuals have even been sentenced to imprisonment for breaking the law and polluting the environment.”

VICTORIA

Individuals and businesses were put on notice after Victoria underwent a major overhaul of its environmental protection management when the Environment Protection Act 2017 came into effect in 2021.

The Act says the responsibility for cleaning up contaminated land operates on the “polluter pays” principle and those who generate pollution and waste should bear the costs of containment, avoidance, and abatement. For serious offences, individuals can also face up to five years imprisonment.

In some cases – including if the original, polluter cannot be located or ascertained – it could be the current owner, occupier or mortgagee in possession of a site who bears the cleanup costs. 

EPA Victoria says: “In applying this principle, EPA will consider the party or parties that directly allowed or caused the pollution. 

“EPA will also consider whether the current owner or occupier of the site is the most appropriate party to bear the cost, including whether the occupier’s actions – for example, negligence, lack of due diligence or acquiescence – have contributed to the pollution.

“For example, if the EPA requires clean-up, through a remedial notice, the polluter or owner would be required to bear the cost of complying with the notice…and if cleanup is related to site purchase/disposal then payment would often be as agreed in the sale/purchase documents.”

The new laws include the General Environmental Duty (GED) which mandates that all businesses and individuals take reasonable and practical steps to minimise risks to the environment and human health from their activities.

“The new laws change Victoria’s focus for environment protection and human health to a prevention-based approach,” says the Department of Energy, Environment and Climate Action. “They are the most significant reforms to Victoria’s environment protection framework in two generations.”

QUEENSLAND

Queensland’s new Property Law Act 2023 – which has passed Parliament and is awaiting a confirmed commencement date – will impact all property vendors in the Sunshine State when it comes into effect.

The new laws, bringing Queensland into line with other states, switches from a caveat emptor or ‘buyer beware’ model to a proactive seller disclosure approach, with vendors who fail to come clean on any contamination issues facing significant consequences.

Under the new Act, sellers must provide buyers with a completed and signed disclosure statement and the prescribed certificates before a buyer can execute a contract for sale. 

The seller must disclose whether the property is recorded on either the Contaminated or Environmental Management Registers; and whether the property has any contamination and environmental protections, orders or applications made under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld).

If a seller doesn’t provide the disclosure statement or fails to provide an accurate disclosure statement, the buyer will have the right to terminate the contract at any time prior to settlement.

Like other states, Queensland also works on the polluter pays principle but, if the polluter cannot be found, the onus to remediate the land may fall on the local government or council, or the landowner if the contamination occurred after the land was purchased by the current owner.

Furthermore a recent amendment to the Environmental Protection Powers and Penalties Act introduces a ’duty to restore’ component requiring that, if someone causes or allows unlawful environmental harm on their land through contamination, that person must take the necessary measures, as soon as is reasonably practicable, to rehabilitate or restore the environment.

Queensland is the only state in Australia without an Environmental Protection Agency (EPA), and state environmental groups like the Queensland Conservation Council continue to lobby for the establishment of “an independent agency with the authority needed to make the tough calls”.

TASMANIA

Environmental laws addressing contamination in Tasmania are generally governed by the Environmental Management and Pollution Control Act 1994 (EMPCA) which is part of the broader Resource Management and Planning System (RMPS).

EPA Tasmania and local councils share responsibility to enforce the EMPCA, with recent amendments aiming to strengthen the independence of the EPA and enhance public access to environmental monitoring information.

In Tassie the responsibility for remediation of contaminated land falls on the party responsible for the contamination, who is required to undertake and finance the cleanup of the site in question and other neighbouring lands affected. This includes obtaining the necessary approvals and implementing remediation under the guidance of professionals. 

According to the Department of Public Health and Environment: “Where a Planning Authority or Permit Authority considers a development or building application in relation to potentially contaminated land, the applicant may be required to…undertake remediation or management measures to demonstrate the site is suitable for the intended use.”

WESTERN AUSTRALIA

In the West the responsibility for the cleanup of contaminated land and water is governed by the Contaminated Sites Act 2003 – and there are tough penalties for failing to report known or suspected contamination within the prescribed timeframe, 

Individuals face fines of up to $250,000 with an additional daily penalty of $50,000 for continuing offences. While corporations are liable for a maximum fine of $1.25 million with  daily charges of $250,000 for ongoing violations.

The Act defines a contaminated site as containing hazardous material at levels posing a risk to the environment and human health.

According to Perth law firm, Lavan Legal, if the land is contaminated, “the Act places responsibility for remediation on polluters, landowners, mortgagees in possession, occupiers, landholders seeking a change in land use, directors and related companies and the State.”

During property transactions, the Contaminated Sites Act may allow for the transfer of remediation responsibility, where the buyer may assume responsibility for remediation costs with the seller’s consent.

“From a buyer’s perspective, consideration of the cost of remediation should be a factor in negotiating the sale,” says Lavan Legal. “Remediation of sites can be a significant and ongoing financial burden.”

The Environmental Protection Act 1986 also has a role in environmental regulation in WA, including contamination issues and the protection of air, water and land.

SOUTH AUSTRALIA

In South Australia environmental laws regarding site contamination are governed by the 

Environment Protection Act 1993, regulating land, air and water pollution and contamination.

Under the Act, individuals and businesses must take all reasonable and practicable measures to ensure their activities minimise environmental impact.

“The original polluter has liability for contamination caused on and off the source site regardless of when it was caused,” says the EPA SA. 

“This means the person who caused the site contamination is responsible for implementing and funding the assessment, meeting the costs of an independent site audit by an accredited site contamination auditor and any subsequent management, containment or cleanup of the site. This may also include meeting the costs of and undertaking communication with the affected community.”

In the case of historical contamination, if it is not possible to locate the original polluter, then liability passes to the site owner. 

“However, the site owner’s liability may be limited to only the owner’s site itself (not off site),” adds the Authority, “and liability is dependent on the owner’s knowledge of the site contamination at the time of purchase.

“The EPA will, in the first instance, negotiate with appropriate persons before taking action, with a view to gaining agreement on the appropriate way forward to manage known or suspected site contamination. This may end up in formal voluntary agreements being entered into between the parties or orders being issued to the appropriate person.”

In South Australia a property seller must disclose any contamination to potential buyers. The buyer and seller can then negotiate who will undertake and finance the remediation of the site as part of the sale agreement.

NORTHERN TERRITORY

The NT EPA administers land, water and air contamination issues in the Top End under the Environment Protection Regulations 2020 and the Waste Management and Pollution Control Act 1998 (WMPC).

The WMPC includes a ‘duty to notify’ which obliges people to inform the EPA of potentially contaminated land as soon as practicable after becoming aware of the problem. Penalties for noncompliance can mean up to five years in jail.

In the Northern Territory the responsibility for cleaning up contamination falls on the polluter. However, if the original polluter cannot be identified, responsibility can shift to a landowner or occupier.

In property transactions, sellers are expected to disclose any known contamination issues to prospective buyers and failure to do so can be grounds for a buyer to terminate a contract before closing. Nevertheless, buyers are advised to conduct due diligence, including any contaminated land assessments, if they have concerns regarding a particular site.