The recent Tasmanian tribunal decision in WM Stuart v.
Environmental Protection Authority  TASRMPAT 110 (16
highlights the relatively low threshold that the environmental
protection regulator is required to establish to issue an
investigation notice for contamination, and
affirmed the principle in Premier Building and Consultant
Pty Ltd v Spotless Group Limited & Ors  VSC 377 that
responsibility for contamination does not require a positive act or
some form of intention.
Mr Stuart was the former owner of a property which was leased to
a tenant who operated a service station. Contamination was located
on the property that was consistent with fuel leaking from
underground tanks on the property. While Mr Stuart had no part in
the day to day operation of the service station, the lease provided
that Mr Stuart was responsible for the maintenance of the
The Tasmanian Environmental Protection Agency (EPA) issued an
Investigation Notice for contamination on Mr Stuart who
subsequently challenged the issue of such Investigation Notice in
the Tasmanian Resource Management and Planning Appeal Tribunal on
the basis that the EPA did not have the power to issue the
Investigation Notice on him and also that he was not responsible
for the contamination.
The Tribunal noted that the issue of an Investigation Notice
does not by itself mean the recipient has caused the contamination.
The Tribunal concluded that, provided the EPA has a
"reasonable belief" Mr Stuart is "likely to be...
partly responsible for causing or possibly causing" the
contamination, the issue of the Investigation Notice is valid.
Implications for you
As the position in Tasmanian law regarding the issue of
Investigation Notices is echoed in most other states, land owners
and tenants should be aware it doesn't take much at all for the
environmental protection regulator to have grounds to issue an
Investigation Notice. An Investigation Notice, while not being a
determination of guilt in itself, may involve costs, potential
interruption to business and/or damage to a business's
reputation. It might also make a land owner or tenant liable for
damages and invoke indemnities, depending on the terms of their
lease or other contractual agreement.
This case is a timely reminder that land owners and tenants
should be familiar with all their obligations in the lease, or
otherwise in respect of contamination, and take all steps to ensure
compliance – especially when a failure to act when
required may be all it takes to be responsible for
As per the Victorian Supreme Court findings in the Spotless
case, "A person who just stood by and watched it happen might
also be a person who committed an act which allows the pollution to
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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