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These Fact Sheets are a guide only and are no substitute for legal advice relating to your particular issue. If you need legal advice about your particular issue, please call our FREE Environmental Law Advice Line 4.3 Contaminated land1 Overview Key to terms used in this Fact Sheet
Act means the Contaminated Land Management Act 1997 DECCW means the NSW Department of Environment, Climate Change and Water Department means the Department of Environment, Climate Change and Water Director-General means the Director-General of DECCW. Environment Minister means the NSW Minister for Climate Change and the Environment EPA means the NSW Environment Protection Authority, an independent statutory body within DECCW LEC Act means the Land and Environment Court Act 1979. Minister means the NSW Minister for Climate Change and the EnvironmentContaminated land is land that contains substances which are above naturally occurring levels that could be damaging to human health or the environment. They are usually the result of poor industrial practices in which the storage, handling and disposal of chemicals has not been well-managed. The Contaminated Land Management Act 1997 (NSW) regulates seriously contaminated sites in NSW.1 The Act establishes a process for the EPA to identify, investigate and (where appropriate) order the remediation of land if the EPA considers the land to be significantly contaminated.2 Land which is contaminated is also regulated under the Environmental Planning and Assessment Act 1979, and SEPP 55 - Remediation of Land, whether or not the EPA has chosen to regulate the site under the Contaminated Land Management Act 1997. In particular, SEPP 55 - Remediation of Land regulates contamination by:
There is some cross over between the Contaminated Land Management Act 1997 and planning and development laws. For example, if the EPA requires that a site be remediated, that work might also require development consent from the local council. Water and land pollution, which may cause contamination, is regulated under the Protection of the Environment (Operations) Act 1997.
1.1 Recent amendments to Contaminated Land Management Act 1997On 10 December 2008, the NSW Parliament passed the Contaminated Land Management Amendment Act 2008 (“2008 Amendment Act”). The 2008 Amendment Act seeks to strengthen the ‘polluter pays' principle so that those responsible for damaging the environment are most likely to bear the cost of remediation. The Amendments also give the EPA new powers to order the investigation of a potentially contaminated site (“preliminary investigation orders” have replaced the old “investigation orders”), and to order the remediation of land (“management orders” have replaced “remediation orders”). Other changes brought by the 2008 Amendment Act include:
1.2 Useful web linksThe Contaminated Land Management Act 1997 is administered by the Environment Protection Authority (EPA), an independent statutory body located within the NSW Department of Environment, Climate Change and Water (“ DECCW ”).
1.3 Useful legal texts
2 Identification and remediation of significantly contaminated land2.1 Contaminated Land Management Act 1997Seriously contaminated land is regulated in NSW under the Contaminated Land Management Act 1997. This legislation seeks to apply the principle of “polluter-pays” by imposing the obligation and cost of remediating contaminated land on the person who polluted it, rather than the community. The Contaminated Land Management Act 1997 sets out a process for identifying, remediating and managing contaminated land. It does not contain any provisions relating to a person's right to obtain damages in relation to contamination (eg because of damage to person or property). The Act expressly states that it does not limit or restrict any rights that a person may have to seek a remedy or damages under any other Act or at common law.7 What is “contaminated land”?“Contaminated land” is legally defined as land where a substance is present at a concentration higher than is normally found on land in the same area, where that substance presents a risk of harm to human health or the environment.8 It includes land where contamination has migrated onto it from another site.9 What is” remediation”?“Remediation” refers to the process of addressing contamination by removing, dispersing, destroying or reducing the contamination of a piece of land.10 It can also include eliminating or reducing any hazard arising from the contamination (eg by establishing fencing and notices to prevent the entry of people or animals onto the land). Tips for making a complaint about contamination
If you are concerned about whether a particular site might be contaminated, you should contact the EPA, by either calling the Environment Line on 131 555 or by making a written complaint. Under the Contaminated Land Management Act 1997, if a member of the public informs the EPA of the actual or possible contamination of a site, then the EPA is under a statutory duty to respond to the complaint.11 The EPA must:
2.2 Responsible Minister and DepartmentThe NSW Minister for Climate Change and the Environment is responsible for the Contaminated Land Management Act 1997. Environment Protection AuthorityThe Act is administered by the Environment Protection Authority (EPA), an independent statutory authority within the NSW Department of Environment, Climate Change and Water (“ DECCW ”). Under the Contaminated Land Management Act 1997, the EPA has a duty to examine and respond to information that it receives of actual or possible contamination of land, and to address any contamination which it considers to be significant enough to require regulation under the Act.13 In carrying out its obligations to regulate contaminated land, the EPA must have regard to the principles of ecologically sustainable development, which include the precautionary principle, inter-generational equity, the need to conserve biodiversity, and the polluter-pays principle.14 It is an offence to give information to the EPA which is false or misleading in the course of complying with a requirement under the Contaminated Land Management Act 1997.15 The EPA is only responsible for regulating significantly contaminated sites, although it has a general duty to examine and respond to any information that it receives of actual or possible contamination of land.16 In cases where the contamination does not reach the threshold of “significant”, the responsibility for regulating the site falls to the relevant local council.
2.3 Who can be held responsible for contaminated land? WARNING: The Contaminated Land Management Act 1997 has been significantly amended by the Contaminated Land Management Amendment Act 2008. This fact sheet takes into account these amendments.
The definition of who can be held responsible for the contamination of land under the Contaminated Land Management Act 1997 is complex, but generally speaking, the Act seeks to apply the “polluter-pays” principle by imposing responsibility on the person who caused the contamination. Under the Act, a person can be held responsible for the contamination of land if:17
A person who disturbs contamination on a site (eg by excavating a site and exposing contamination), can also be held responsible.18 The EPA has a broad discretion under the Contaminated Land Management Act 1997 to target any one of these people for the purposes of issuing orders and directions to investigate or remediate a site. Public authorities, such as local councils, are also bound by the Contaminated Land Management Act 1997 and must comply with any order or direction of the EPA.19 Developer can become responsibleA developer who wishes to develop a contaminated site by changing its to a more sensitive use (eg by developing an ex-petrol station into a childcare centre) can become liable for any significant contamination when they lodge a development application or Part 3A major project application for the site.20 This is because if the change of use is approved, it will result in an increased risk of harm, even if the contamination itself does not change. No contracting out of responsibilityA person who is responsible under the Contaminated Land Management Act 1997 for causing contamination cannot contract out of their statutory liability for causing that contamination. This provision means, for example, that a person cannot avoid being liable to clean-up of contaminated site because they passed on the risk of the site being found to be contaminated to a purchaser in a contract for sale of land.21 Note: This provision is part of the new amended Act – the Contaminated Land Management Act 2008. Minor parts of this piece of legislation commenced when the Bill was assented to in December 2008, however the majority of the provisions are anticipated to come into force on 1 July 2009. The ‘contracting out of responsibility provision' is not yet in operation. 2.4 Investigation and remediation proceduresThe Contaminated Land Management Act 1997 allows the EPA to issue orders and directions to ensure that contaminated land is identified and, if necessary, remediated. It is an offence not to comply with these orders and directions, and the Act contains significant penalties for any failure to comply. Preliminary investigation ordersOnce the EPA becomes aware that a site may be contaminated, the EPA can order a person to carry out a preliminary investigation within a specified time. The investigation should determine whether the land is contaminated, and if so, with what substance and to what extent.22 The following people can be served with a preliminary investigation order:23
If the EPA has reason to believe that contamination is significant enough to warrant regulation under the Act, the EPA can declare the land to be “significantly contaminated land”.25 The declaration must be published in the NSW Government Gazette, and any person then has 21 days to make submissions to the EPA on whether the EPA should serve a management order in relation to the land.26 The Act does not contain any requirement that the EPA notify the public of the declaration, although the EPA is required to publish a policy on DECCW's website setting out how it intends to notify the public about land that it has declared to be significantly contaminated.27 Management ordersOnce the EPA has made a declaration that land is significantly contaminated, the EPA can then proceed to issue a management order directing somebody to carry out management actions on the land (such as remediation work).28 In addition to this, or as an alternative, the EPA can direct a person to submit, for the EPA's approval, a plan of management describing how the person proposes to deal with the contamination.29 The EPA can choose one of the following persons to give the order to:30
In deciding who to give the order to, the EPA must, as far as practicable, follow the hierarchy set out in the paragraph above (eg it must target the person responsible for causing the contamination over the owner of the land, if possible).31 The actions which a management order can require a person to carry out include:32
Remediation works may require development consent under SEPP 55 - Remediation of Land: see para 3 below. Director and manager responsibility If a company which owns contaminated land is wound up or sells the land, a person who was a director or manager of the company can be directed to comply with a management order, at their own expense.33 These orders can only be made by the Land and Environment Court (not by the EPA), and can only be made within 2 years of the company being wound up or the land sold.34 The purpose of these orders is to ensure that managers and directors cannot avoid responsibility for remediating contaminated land simply by winding up the company which owns the land, or by selling the land. Voluntary management proposals As an alternative to receiving a management order, a person can approach the EPA with a voluntary management proposal as to how they propose to manage a significantly contaminated site, which the EPA can approve.35 Ongoing maintenance orders Remediation work can often take place over a long period of time, and monitoring of a site may be required for many years. The Contaminated Land Management Act 1997 allows the EPA to serve on an owner or occupier of land an ongoing maintenance order if the land has been the subject of a management order or an approved voluntary management proposal.36 For example, a maintenance order can require a person to maintain fences and notices, to notify the EPA of any change in ownership or occupancy, or can restrict the things that a site can be used for. Statutory site audits The EPA can require a person to carry out a site audit for the purpose of complying with any obligation under the Contaminated Land Management Act 1997.37 A site audit usually identifies the nature and extent of contamination on a site. Site audit reports and statements are carried out and prepared by site auditors who are accredited under the Contaminated Land Management Act 1997.38 2.5 Public registersThe EPA must make a range of documents available on DECCW's website and the EPA's main office, including:39
Click here to go to the EPA's public registers 2.6 Duty to report contaminationThe Contaminated Land Management Act 1997 requires people to notify the EPA of land which is contaminated.41 The obligation only arises if:
The following people have an obligation to notify:
Failure to notify carried significant penalties: for example, for a corporation which fails to notify of contamination it has caused can incur a maximum penalty of $165,000, plus $77,000 for each day the offence continues. The EPA can still declare a site to be significantly contaminated or make a preliminary investigation order or management order, whether or not they have been notified that the site is contaminated.42
Note: If you are concerned about whether you should report contamination to the EPA, you should seek specific legal advice about your statutory responsibilities. 2.7 Community offset arrangementsThe 2008 Amendment Act introduced new provisions to the Contaminated Land Management Act 1997 which allow the Environment Minister to enter into an offset arrangement with a person who is responsible for contamination of land.43 An offset arrangement could, for example, require the person to provide facilities or services to a local community, or could require the person to carry out an environmental project. An offset arrangement can only be set up if the Minister considers that it is not practicable to remediate the contamination within a reasonable time. 2.8 AppealsMerit appeals A person who receives a management order can appeal against the order. This type of appeal is a merits appeal and will be heard in Class 1 of the Land and Environment Court. The appeal must be brought within 21 days of receiving the management order.44 The Contaminated Land Management Act 1997 does not allow a merits appeal to be brought against any other types of orders or decisions by the EPA, such as declarations of significant contamination. However, an appeal in the judicial review jurisdiction of the Land and Environment Court may be available for these decisions (including for management orders): see para below.
Judicial review (civil proceedings) A person who is of the view that a decision or action by the EPA was not made in accordance with the process and their powers set out under the Contaminated Land Management Act 1997 can challenge the validity of the decision in the Land and Environment Court. This is because the Act allows any person to bring civil proceedings to enforce the Act.45 Civil proceedings are brought in Class 4 of the Land and Environment Court's jurisdiction.46
2.9 EnforcementClean-up and prevention noticesThe EPA can issue a clean-up notice or direction, or a prevention notice in relation to contaminated land in the same way as it can for other pollution offences under the pollution laws (ie the Protection of the Environment (Operations) Act 1997).47
Penalty notices For minor offences under the Contaminated Land Management Act 1997, an authorised officer can issue a penalty notice. These are known as “penalty notice offences” and are listed in Schedule 1 to the Regulations, along with the prescribed penalty for each offence.48 A person can avoid having to go to court if they pay the penalty notice within the required time. Payment will not be regarded as an admission of liability.49 EPA can remediate site and seek costs from responsible person If a person fails to comply with a direction or order to investigate or remediate land, the EPA or another public authority can step in and carry out the work themselves, and recover the costs from the person responsible.50 Criminal prosecutions The EPA can bring criminal proceedings in the Land and Environment Court to prosecute a person (or corporation) if they have committed an offence under the Contaminated Land Management Act 1997 (eg a failure to comply with a management order or ongoing maintenance order).51 The Court can impose significant fines for these offences, eg a fine of up to $137,500 with a daily penalty of up to $66,000 if a corporation fails to comply with a management order.52 Minor offences can be prosecuted before a Local Court or the Land and Environment Court, although the maximum penalty that a Local Court can impose is limited to $11,000.53 The Act allows any person to commence criminal proceedings in the Land and Environment Court if they wish, but they must obtain the leave (permission) of the Court first.54 The Court must not grant leave unless it is satisfied that the EPA has failed to take enforcement action within 90 days of being asked to do so, the proceedings are not an abuse of the court process, and the evidence discloses a prima facie case (strong case) that an offence was committed.55 Civil enforcement proceedings The Contaminated Land Management Act 1997 allows any person to bring civil proceedings to enforce the Act.56 This means that any member of the public can bring proceedings to challenge a decision made by the EPA under the Act on the basis that the decision is legally invalid, and the Court can make orders to remedy or restrain the breach, such as a declaration (that the law has been breaches), an injunction or a remediation order. Civil proceedings are brought in Class 4 of the Land and Environment Court's jurisdiction.57
3 Development of contaminated sitesSEPP 55 - Remediation of Land establishes a statewide approach for the regulation of development on contaminated sites (whether or not they are also regulated by the EPA). In particular, SEPP 55 - Remediation of Land:
3.1 Rezoning must consider contaminationLocal councils control land use by making local environment plans which establish various land use zones within their local government area. These establish whether land can be used, for example, as residential, commercial, industrial or educational areas. SEPP 55 - Remediation of Land requires local councils, in certain cases, to consider the implications of any actual or potential contamination before rezoning land, including whether the land will be suitable for its proposed uses.58 For example, if it is proposed to rezone land to allow a sensitive use, such as for residential, educational, recreational or child care purposes, then a council must consider the potential for the site to be contaminated.59 This applies if it is known that the site is contaminated, or if it is merely a possibility, having regard to the activities that that60 the site was previously used for, that the site might be contaminated. Before rezoning such land, the council must obtain and consider a preliminary investigation report on the actual or potential contamination.613.2 EPA must notify councilsLocal councils should be aware of site contamination because they have access to past land use records which should indicate whether contaminating activities have been carried out on a site, and also because the EPA is under an obligation to notify them of any contamination. In particular, the EPA must, as soon as practicable, inform the local council if land in their area:62
3.3 Section 149 planning certificatesUnder section 149 of the EPA Act, a person can obtain a planning certificate for a particular parcel of land which identifies the planning constraints on that land (eg the zoning, and SEPPs which apply, etc). This is called a “section 149 certificate”, or a “planning certificate”. In addition to any zoning constraints, the Contaminated Land Management Act 1997 also requires a planning certificate to identify whether the land is:63
3.4 When is development consent required?SEPP 55 - Remediation of Land sets out when development consent is, and is not, required for remediation work and any redevelopment of a contaminated site.64 It overrides any LEP, but does not override the provisions of another SEPP which can require development consent for remediation activities.65 Category 1 work requires development consent Remediation work which requires development consent (called “Category 1 remediation work”) includes any work that is:66
Category 2 requires notification All other remediation work (ie which is not Category 1) does not need consent (this is called “Category 2 remediation work), unless an exception applies.68 Even though Category 2 remediation work does not need development consent, a person who proposes to carry out such work must give at least 30 days written notice to the council before starting the work.69 The consent authority for remediation work will usually be the local council, unless an environmental planning instrument specifies otherwise.703.5 Development applicationsAdvertised development Development applications for Category 1 remediation work (ie work which requires consent is deemed to be “advertised development”, unless the remediation work is designated development or State significant development. This means that notice of the development application must be published in a newspaper, the development application must be placed on public exhibition, and public submissions must be invited for at least 30 days after the date of publication.71
Part 3A Major projects The remediation of contaminated sites is listed in SEPP (Major Projects) 2005 as a class of development which can be considered to be major projects.72 Remediation work which needs development consent (see SEPP 55 - Remediation of Land) and which is also:73
Development consent: additional considerations SEPP 55 - Remediation of Land sets out additional considerations which a consent authority must consider where contamination is involved.74 Before granting a development consent, a consent authority must consider:
Case study: Failure of developer's site assessment to provide detailed history of use of land – consent refused
Wallarah Minerals Pty Ltd v Mulwaree Shire Council (2000) 111 LGERA 132Wallarah Minerals (the Company) wanted to build a dwelling-house on land located at Marulan which was zoned 1(a) (General Purposes) and lodged a development application with the local council. The land had been used as a crushing and screening plant for refractory materials for more than 40 years, ie since about 1960. SEPP 55 - Remediation of Land required the council to consider a report specifying the findings of a preliminary investigation of any contamination of the land before it could grant consent. A preliminary site assessment report was carried out by the Company, but it focused only on what the land had been used for recently, and did not consider what the site had been used for before 1990. The Council refused development consent, and the Company appealed to the Land and Environment Court. The Court refused to grant consent. It held that the requirements of SEPP 55 - Remediation of Land had not been met because a full investigative report into the past uses of the land had not been carried out. There still existed potential for the site to be contaminated. The Court could not grant development consent until a full report was done and it could be determined whether any remediation was required.
3.7 Standard of remediationAll remediation work, whether carried out under a development consent or not, must be carried out in accordance with the contaminated land planning guidelines published by the EPA.78 A notice of completion of remediation work on any land must be given to the local council within 30 days of the work being completed.794 Contaminated land offencesThe Contaminated Land Management Act 1997 does not contain any offence provisions which prohibit a person from causing land to become contaminated. Instead, these offence provisions are contained in the Protection of the Environment (Operations) Act 1997, and include:
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