Is the owner of land formerly used as a landfill required to notify the State if environmental harm is being caused?
Practices associated with owning and operating landfills have changed considerably over time. Landfills or tips were often developed on what was thought at the time to be undesirable land – swampy low-lying land and creeks.
By modern standards, little or no thought was given to any environmental values these creeks or wetlands may have had including the level and type of waste dumped. In Queensland, landfills were historically licensed by the State Government under the Health Act 1957 and the Refuse Management Regulations 1983 which were public health based legislation as opposed to being directed towards environmental management. Decommissioning and legacy environmental management issues were largely ignored.
It is not uncommon for land formerly used as landfill to be converted for residential uses as well recreational or sporting parks. Current legislative requirements for landfills include a detailed environmental management plan setting out requirements for decommissioning and legacy land use.
IS NOTIFICATION REQUIRED?
Under ss371 and 372 of the Environmental Protection Act 1994 (Qld), an obligation to notify the administering authority, the Department of Environment and Heritage Protection, is cast upon the owner, occupier and local government if they become aware the land has been1, or is being, used for a notifiable activity or is contaminated by hazardous contaminants. Both "notifiable activities" and "hazardous contaminants" are defined in the EPA. Schedule 3 lists "notifiable activities" and includes battery manufacture, asphalt or bitumen manufacture, coal fired power station and landfills. "Hazardous contaminants" are broadly defined having regard to the nature and quantity of the contaminants and possible adverse impacts they might have on public health and/or the environment.
It is likely that the administering authority has been notified previously about the operation of a landfill. Once notified, there may be no ongoing obligation to renotify even if circumstances such as an extreme rain event leading to leachate migrating off-site occurs. However, any development approval for a material change of use should be considered as on-going monitoring and reporting conditions are common. Any site management plan issued under the contaminated land provisions of the EPA should also be considered.
That said, and perhaps more critically, is the owner or occupier of the former landfill site required to give notice, no later than 24 hours, to the Department of the actual or potential material environmental or serious environmental harm?
NOTIFICATION OF MATERIAL ENVIRONMENTAL OR SERIOUS ENVIRONMENTAL HARM
Sections 320 – 320G2 of the EPA impose a duty on a person while carrying out an activity (the primary activity), to notify the administering authority where unlawful material environmental or serious environmental harm is caused or threatened by the activity or any other activity being carried out in association (associated activity) with it. These sections broadly impose responsibilities on employees and agents to notify their employers and principals respectively if they become aware of the harm or threat of harm. In some circumstances, the owner and occupier of "affected land" must also be notified. "Affected land" is a defined term and would include adjoining land if material or serious environmental harm was caused or threatened to it. A breach of these provisions is an offence.
Sections 320-320G are not expressed by reference to the occupation of land but rather to the carrying out of an "activity". When operational, the "landfill" would undoubtedly be the primary activity. But where a former landfill is subsequently used for, say, residential or recreational purposes, it is not. Further, it is also difficult to suggest that residential or recreational purposes are associated activities as there is no interconnection between the former landfill and the current use. That primary activity has ceased.
Accordingly, the requirements to notify about environmental harm are not triggered for harm which is not related to the carrying out of residential or recreational activities.
There is a proviso: an activity that mobilises previously secured contaminants from a former landfill may be a "primary activity" for the purposes of the EPA and reporting may be required. These circumstances could arise during the redevelopment of a site, perhaps during bulk earthworks or the drilling of footings.
Further, the approval authorising the operation of the landfill should be considered. If a condition to the approval requires on-going rehabilitation or remediation of the site and the condition continues to apply after the authority has ended or ceased to have effect then it is arguable that in that circumstance that the landfill activity is still being carried out and any other activities on the land may be an associated activity.
Even if any other uses on the land may be associated to the primary activity, the term "activity" requires further consideration. There is little guidance provided by State, interstate, Commonwealth or overseas authorities on what are an activity.
Under section 23 of the Landlord & Tenant Act 1954 (UK), an "activity" was found not to strictly require a "trade, profession or employment" but must be at least something bearing a relationship to the conceptions contained in that word. The use of a shop as a dumping ground for waste from other shops was not an "activity" for the purpose of that section.3
Under other English legislation requiring an "activity carried out by a body of persons", the words being contained in section 25(1) of the Redundancy Payments Act 1965 (UK), was held that mere ownership of premises did not suffice as an activity.4
This may have some bearing on whether the notification provisions are relevant to certain conduct.
These provisions are in contrast to the more general requirement under s372 of the EPA for local governments to report if hazardous contaminants (including from the former landfills) migrate onto other land. Should this occur, that local government may be best served by having a suitably qualified expert assess the contaminants to determine whether they meet the definition under the Act.
The Department and adjoining land owners and occupiers should review the status of former landfills. It should not be assumed that the owner or occupier of a former landfill, particularly where the size or original landfill was not great but the age of it is, is continuously testing for leachate or landfill gas migration. It is possible that the owner or occupier is taking necessary steps to prevent and minimise the contamination. However, even if the owner or occupier is aware of material or serious environmental harm arising from the former landfill but is (or, is not) taking remediation measures, they may not be obliged to notify following an incident.
Of course, not disclosing contamination or not carrying out remediation measures to prevent or minimise environmental harm where such causes damages may result in a tortious claim against the owner or occupier of the former landfill but that raises other issues.
1Section 371 relates to owners and occupiers whereas s372 relates to local governments but otherwise they are similar. Section 372 applies to all land in the relevant local government area but a key difference between the two provisions is that the Council is obliged to give notice about notifiable activities that have in the past been carried out as well as existing activities.
2These sections also apply to an entity carrying out a resource activity other than a mining activity
3Hillil Property & Investment Co v Naraine Pharmacy (1980) 39 P. & C.R. 67.
4See Dallow Industrial Properties v Else  2 QB 449
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.
|Most awarded firm and Australian deal of
Australasian Legal Business Awards
|Employer of Choice for
Equal Opportunity for Women
in the Workplace (EOWA)