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Polluters on notice

A decade in the planning and a dozen drafts later, the Contaminated Sites Bill 2002 has put the State’s landowners on notice, as Gary Kleyn reports.

PROPERTY owners will be dealing with the most onerous and mandatory environmental laws in the country under a bill introduced into State Parliament last year.

The Contaminated Sites Bill 2002 – which has been a decade in the making, undergone more than a dozen drafts, and which is promoted by both sides of politics – is expected to become law within months.

Landowners, occupiers, lenders, local and State governments and real estate agents are being put on notice that they must abide by the new stringent requirements or face the toughest penalties in the country. Even selling a contaminated site does not remove the responsibility for any future remediation work required.

It is being dubbed as the most important piece of environmental legislation introduced in WA in the past decade and is considered by many as long overdue.

The bill is intended to bring the State into line with others across the nation, yet some argue it goes much further.

Mallesons Stephen Jaques environment partner Chris Stevenson believes the proposed legislation is one of the best around the world, and an improvement on what other States have done to date.

“The current Environment Act is insufficient. It simply does not go far enough,” Mr Stevenson said.

“The bill is state of the art. They [the legislators] obviously have been looking at what else is out there.”

He said the purpose of the bill was to facilitate the identification of contaminated sites so they could be monitored and, if necessary, cleaned up.

“The consequences will be far reaching for those who own or occupy contaminated land,” Mr Stevenson said.

“The reporting obligations are mandatory, even if it is only suspected that the land might be contaminated.”

The bill, which was introduced for the second reading in November by the Minister for Environment and Heritage Judy Edwards, will require owners to report any known or suspect contaminated site within six months of the law being passed.

Known sites are to be reported within 21 days of their owners becoming aware of the contamination.

The information will be compiled on a public database and will be placed on the land titles for future reference.

Suspected sites are to be reported “as soon as reasonably practicable” after becoming aware of the possibility of contamination.

Failure to report may result in a fine of up to $1.25 million for companies, with a daily penalty of up to $250,000.

While many property developers and lawyers welcome the bill, believing it is long overdue, there is some disquiet about what the law will mean in practice and to what lengths law enforcers will go to enforce the legislation.

Central to the concerns is the perceived ambiguity of what constitutes a contaminated site.

Blake Dawson Waldron partner Geoff Gishubl said the definition of a contaminated site was, in The Contaminated Sites Bill 2002, much broader than in other States.

The bill states that a site is contaminated if a substance is present in land, water, surface water or underground water in a concen-tration that presents or has the potential to present, a risk of harm to human health or the environment.

Also questionable, according to Mr Gishubl, is the government’s ability to devote resources to the project – a point shared by Property Council policy manager Geoff Cooper.

“There will be an expectation that the government will also put resources toward promoting the law,” Mr Cooper said.

The new legislation would have a dramatic impact on property prices, he said. The bill also sets out a hierarchy of responsibility for remediation of contaminated sites and gives the CEO of the Department of Environmental Protection new powers to order investigations and remediation.

A brief on the bill released by Blake Dawson Waldron last week said the responsibility of remediation would be brought against the person who caused or contributed to the contamination, and the owner of the land who changed or proposes to change the use of the land. This may result in the need for remediation.

However if the polluter has become insolvent, or the remediation work would cause insolvency, or when the polluter cannot be found or identified, the onus falls on the landowner.

But Blake Dawson Waldron said an owner could seek a certificate of exemption if he or she purchased the contaminated site prior to the enactment of the law and did not know or suspect that the land was contaminated.

Under the bill, a provision is made for the establishment of a contaminated sites committee, which will have the power to hear and settle disputes that arise over remediation.

Mallesons Stephen Jaques’ Chris Stevenson said that, once an investigation notice or clean up notice had been issued by the CEO, failure to comply may lead to a penalty of up to $2.5 million with a daily penalty of up to $500,000.

“It is the most far reaching of such legislation in Australia,” Mr Stevenson said.

“It will have a dramatic impact on all aspects of such legislation in Australia, and as such, will have a dramatic impact on all aspects of land use.

“Not only is the issue of responsibility for clean up likely to be contentious, but the mere identification of land as contaminated will have real impacts on land values, financial securities and actual usage.

“The commencement of the legislation will bring some far reaching change to those affected, but at what price?”

The Real Estate Institute of WA is studying the bill to see what ramifications are likely on real estate agents. Its findings are expected within the next week.

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