Australia: Pollution and contaminated land

Environment & Planning National Review 2016
Last Updated: 5 September 2016
Article by Karen Trainor


Air Quality NEPM

The National Environment Protection (Ambient Air Quality) Measure introduced Australia's first national ambient air quality standards, and sets national standards for the six key air pollutants to which most Australians are exposed: carbon monoxide, ozone, sulfur dioxide, nitrogen dioxide, lead and particles. The standards have been binding on each level of Government since 2008 and the NEPM requires monitoring of air quality to identify potential air quality problems.

In April 2014, the Ministers, as part of the National Environment Protection Council, signalled their intention to vary the Air Quality NEPM based on the latest scientific understanding of the health risks arising from airborne particle pollution. This sought to establish a more stringent reporting standard for particle pollution. An Impact Statement on the proposed variation was released for public consultation, with submissions due by October 2014. Submissions are currently being considered as part of a development of a final proposal to vary the AQ NEPM.

The National Clean Air Agreement was established by Australia's Environment Ministers on 15 December 2015. The agreement focuses on actions to reduce air pollution and improve air quality through co-operation between industry and government at the national, state and local level. Actions under the Agreement over the next two years will target priority issues of concern, including reviewing and strengthening air quality monitoring and reporting standards, targeted measures to reduce emissions from key sources of air pollution, improving access to air quality information for communities, and fostering partnerships with industry. All jurisdictions have agreed to implement strengthened standards for particles, as well as move to tighter standards for annual average and 24-hour PM2.5 particles in 2025. Emission standards for new non-road spark ignition engines are planned for this year, to be based on US Environmental Protection Agency and equivalent international standards.


Duty to report contamination

On 3 July 2015, the new Guidelines on the Duty to Report Contamination under section 60 of the Contaminated Land Management Act 1997 took effect, replacing the previous 2009 version. The guidelines set out the duty of landowners and those responsible for contamination to report it to the EPA.

Compared with the 2009 guidelines, the updated guidelines:

  • more comprehensively adopt the contaminant trigger levels in the National Environment Protection Measure for Assessment of Site Contamination 2013 (NEPM) which now gives the NEPM standards statutory force in NSW (in the context of reporting contamination) and promotes a stronger national approach to contamination assessment; and
  • include new guidance on notification triggers for groundwater, surface water, vapour intrusion and asbestos in soils.

Maximum penalties for polluters failing to report contamination in accordance with section 60 of the Act remain a maximum of $1m for a corporation (plus further daily penalties). The maximum penalty for a landowner, in the case of a corporation, is $165,000.

Of course, landowners and persons whose activities might have caused pollution may have other obligations to notify as well, including a duty to report pollution incidents under the Protection of the Environment Operations Act 1997 (NSW). A key feature of the Contaminated Land Management Act obligation is that it applies when a person becomes aware or ought reasonably to be aware of the need to notify in any given situation.

The adoption of the NEPM and introduction of new, lower thresholds, may require reporting of sites that previously fell below relevant triggers and thresholds. We recommend that current and former owners and occupiers of sites which may be contaminated examine the new guidelines and seek legal and technical advice to ensure reporting obligations are met.

Challenger Listed Investments Limited v Valuer General (No 2) [2015] NSWLEC 60

The NSW Land and Environment Court held that contaminated land is a matter which must be considered in determining "land value" under the Valuation of Land Act 1916 (NSW) where the contamination of land has been caused by operations or improvements occurring on the land.

In the Challenger case, the Valuer-General had determined the land value of an industrial site in Yennora NSW, owned by Challenger, at approximately $7.5 million, while Challenger contended that the land had nil value. The site had been declared "significantly contaminated land" by the Environment Protection Authority pursuant to section 11 of the Contaminated Land Management Act.

Prior to the Challenger case, the Valuer-General's valuation methodology did not account for the costs of remediating the contamination if the current use of the land can continue in perpetuity. However, the Court held that the construction of section 6A(2) of the Valuation of Land Act requires the Valuer-General to take into account the effect, and likely costs of remediating contaminated land, in conducting a valuation.

This case is particularly important for land tax, council rates and many lease rent reviews which adopt the Valuation of Land Act definitions.

Moorebank Recyclers Pty Ltd v Benedict Industries Pty Ltd [2015] NSWLEC 40

In this case, the Land and Environment Court held that development consent granted by the Sydney West Joint Regional Planning Panel (JRPP) was invalid because the decision maker did not comply with clause 7 of State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55).

Clause 7 of SEPP 55 says that a consent authority must not consent to the carrying out of any development unless:

  • it has considered whether the land is contaminated;
  • if so, whether the land is suitable for the proposed development in its contaminated state; and
  • if the land requires remediation to be made suitable, whether it is satisfied that the land will be so remediated.

In addition, a consent authority cannot grant consent until it has considered an investigation report provided by the proponent and carried out in accordance with the contaminated land planning guidelines.

The JRPP granted consent to Benedict Industries Pty Ltd in August 2014 with conditions, one being to obtain a report by a contaminated land consultant. However, the timing of this report after the development consent was granted (rather than being provided with the development application to allow the decision-maker to properly assess the application in accordance with clause 7 of SEPP 55) constituted an error of law which Chief Justice Preston found invalidated the consent.

Kempsey Shire Council v Slade [2015] NSWLEC 135

The Land and Environment Court ruled that a party incurring clean-up costs associated with pollution can recover those costs under the Protection of the Environment Operations Act 1999 (POEO Act) from directors personally, not only the corporate polluter. Kempsey Shire Council was successful in recovering its expenses it incurred in cleaning up asbestos waste illegally dumped at a commercial waste facility. The Council had leased the relevant land initially to one of the directors himself, and then to the company of which they were the directors. There was some dispute about when the relevant pollution events occurred. After the relevant leases had ended, the Environment Protection Authority found the asbestos and issued a POEO Act clean-up notice to the Council. The Council complied with the order then sought to recover its clean-up costs from the directors pursuant to section 105(1) of the POEO Act, which allows a public authority to require a person that it "reasonably suspects" of causing the pollution in question to pay all reasonable costs incurred in connection with the remediation.

The Court focused on the scope of the term "reasonable suspicion" in finding the directors liable on the facts of this case, but it also noted that section 105 would allow a claim against a company and/or its directors.


Directors' liability redefined for environmental offences

The Statute Law Amendments (Directors' Liability) Act 2015 commenced on 14 October 2015 and redefined directors' liability for corporate offences in 40 Acts and two Regulations by inserting new liability provisions which are consistent with the three types of director liability outlined in the Council of Australian Governments' guidelines:

  • Type 1 – the failure of the director to take reasonable steps to prevent the corporation's offending must be proved by the prosecution beyond reasonable doubt.
  • Type 2 – a director is deemed to be liable unless they can produce enough evidence to suggest that there is a reasonable possibility that a defence applies. The prosecution must prove beyond reasonable doubt that the defence does not apply.
  • Type 3 – a director is deemed to be liable for a corporate breach unless they can produce enough evidence to prove their defence on the balance of probabilities.

Relevantly, a director's personal criminal liability to offences committed by a corporation under the Energy Pipelines Act is now limited to certain offences, which no longer includes an offence against the general environmental provisions of this Act, however a director will continue to be personally liable under the general environmental provisions where that director has personally committed the offence. Under the Waste Management and Pollution Control Act a director will now have personal criminal liability for an offence against the general environmental provisions and a duty to notify which is committed by a corporation unless the director can prove one or more of the defences on the balance of probabilities. The director will bear the legal burden to establish their defence which reverses the usual onus of proof in criminal law.

The new liability provisions will only apply to all of the conduct constituting the offence that occurred after 14 October 2015. Executive officers, either a director or other person who is concerned with, or takes part in, the management of the body corporate, should familiarise themselves with the new provisions in the Northern Territory where that body corporate will operate within the Northern Territory jurisdiction.


New contaminated land provisions

A number of significant changes to the regulation of contaminated land were made after amendments to the Environmental Protection Act 1994 commenced on 30 September 2015. The amendments include:

  • new duties to notify of contamination;
  • changes to the grounds and process for inclusion of land in the environmental management register (EMR) and contaminated land register (CLR); and
  • changes to the content and submission requirements for "contaminated land investigation documents".

A new duty applies to a person who is the owner or occupier of contaminated land or an auditor who is performing the function of preparing a certification for a site investigation report, validation or draft site management plan (SMP) or draft amendment of a SMP. Where the person becomes aware of:

  • the happening of an event involving a hazardous contaminated on the contaminated land;
  • or a change in the condition of the contaminated land,

that is causing, or is reasonably likely to cause, serious or material environmental harm, the person must give the administering authority a written notice within 24 hours, unless the person has a reasonable excuse. There are also new duties applying to local governments, requiring notice to be given to the administering authority in certain circumstances.

The amendments also change the grounds and process for inclusion of land in the EMR and CLR. The administering authority can record the particulars of land in the EMR at any time if satisfied that a notifiable activity has or is being carried on the land, or the land is contaminated land; and on the CLR if the land is already recorded on the EMR and it is satisfied that the land is contaminated land and it is necessary to take remediation action.

The process for inclusion on the relevant land register involves a show cause notice being sent to the land owner, giving the land owner an opportunity to make a submission. The submission will be considered by the administering authority, but the administering authority must still record the land on the register if the administering authority still believe grounds exist to do so.

The amendments introduce the concept of a "contaminated land investigation document" (a site investigation report, validation report or draft SMP). Uniform content and submission requirements now apply for all contaminated land investigation documents.

Review of regulated waste regime

Waste in Queensland is managed depending on the level of harm it poses to human health and the environment. Wastes with known impacts to human health and to the environment are "regulated wastes" listed in Schedule 7, Part 1 of the Environmental Protection Regulation 2008 (Qld). Under the Environmental Protection Act 1994 (Qld) and the Environmental Protection Regulation 2008 (Qld) there are stronger requirements for dealing with the transport, storage and disposal of regulated wastes, as opposed to waste that is not regulated.

The Department of Environment and Heritage Protection is conducting a review of the regulated waste framework. The aim of the review is to update the list of regulated wastes within Schedule 7, Part 1 of the Environmental Protection Regulation 2008 (Qld) and to simplify the process for identifying and managing regulated waste.

The Department has made a proposed regulated framework available, which contains a new schedule of regulated wastes and a method for identifying regulated waste in the new framework. The objective of the framework is to clarify how and why regulated wastes are categorised.

Public consultation on the proposed changes closed on 25 September 2015. The Department has not provided a date by which to expect the new changes to occur.

New enforceable undertakings regime

Parts of the Environmental Protection and Other Legislation Amendment Act 2014 (Qld) commenced on 30 September 2015, which amended the Environmental Protection Act 1994 (Qld) to introduce enforceable undertakings. Enforceable undertakings are binding agreements between a person and the administering authority, which require the person to agree to take specified action to rectify an identified non-compliance with the Environmental Protection Act 1994 (Qld), in return for the administering authority not seeking prosecution.

The administering authority may accept an enforceable undertaking in response to a contravention of the Environmental Protection Act 1994 (Qld) if the undertaking will secure compliance and enhance the protection of the environment. A copy of the enforceable undertaking will be published on the administering authority's website. The undertakings are available for all contraventions, or alleged contraventions, other than for an indictable offence. Contravention of an enforceable undertaking is an offence.

The Department has prepared "Guideline: Enforceable undertakings under the Environmental Protection Act 1994" to provide information about the administering authority's expectations and management of enforceable undertakings, and to assist persons in preparing an enforceable undertaking.

Enforceable undertakings are also available under the Federal Environment Protection and Biodiversity Conservation Act 1999 (Cth).


Waste industry review

Working in conjunction with the South Australia's Waste Strategy 2015-2020, the South Australian Parliament's Environment, Resources and Development Committee is conducting a review of the waste industry. Its terms of reference are:

  • whether the current method of charging and collecting the solid waste levy has been successful in ensuring a level playing field in the waste sector while encouraging resource recovery over landfilling or stockpiling of materials;
  • the adequacy of regulatory and legislative powers within the Environment Protection Act 1993 (SA) to manage the waste sector, including licence enforcement and current penalties;
  • best practice methods in the resource recovery and waste sectors;
  • minimisation of hazardous risks in the resource recovery and waste sectors;
  • relevant themes from the 2015 EPA/ZWSA Waste Summit which will inform this inquiry; and
  • any other matter.

Submissions to the Committee closed on 21 December 2015. The release date for the report has not yet been announced.

From 1 July 2015, the Office of Zero Waste SA was renamed as the Office of Green Industries SA. We expect that legislation to establish Green Industries SA will be developed this year.

"Queensland's new enforceable undertakings regime commenced on 30 September 2015."

New Environment Protection (Water Quality) Policy introduced

The Environment Protection Authority introduced a new Environment Protection (Water Quality) Policy 2015 to replace the previous Environment Protection (Water Quality) Policy 2003.

The policy operates under the Environment Protection Act 1993 and gives legal effect to codes of practices. It allows for a more flexible approach to the regulation and management of South Australia's surface, marine and underground water sources in South Australia.

Its key changes are:

  • expanding the application of the policy to include water within pipes and tanks of a water reticulation system, water within a sewage system or wastewater management system, water within a closed tank constructed of or lined with material impervious to water and swimming pool water;
  • clarifying the definition of "public stormwater system" to ensure catchment management infrastructure is included. This clarifies that any public infrastructure for the purpose of collecting, treating or conveying stormwater is part of the public stormwater system;
  • creating a general duty requiring a person who discharges or deposits a pollutant into any water to take all reasonable and practicable measures to ensure that any applicable guidelines are met. This obligation can be enforced by issuing an environment protection order;
  • clarifying that a person involved in cleaning the hull of a vessel has a duty to ensure all material removed does not get into water; and
  • adding pollutants to the scheduled pollutants list.

The new policy came into effect on 1 January 2016.

Draft policy on air quality

On 13 November 2015, the Environment Protection Authority released a new draft Environment Protection (Air Quality) Policy 2016 for public consultation. The draft policy will replace the Environment Protection (Air Quality) Policy 1994 and consolidate the Environment Protection (Solid Fuel Heaters) Policy 2015 and the Environment Burning (Protection) Policy. It:

  • consolidates the current Air Quality, Burning and Solid Fuel Heaters policies as well as the air impact assessment and odour assessment guidelines;
  • includes criteria to assess applications for environmental or development authorisations as well as general monitoring of air quality. This allows the Authority to review and update the criteria on a more regular basis;
  • creates a fast-track method to allow the update of assessment criteria;
  • empowers the Authority to declare localised air quality objectives for a specific area;
  • requires solid fuel heaters sold and installed comply with relevant Australian Standards;
  • prohibits the sale of firewood with more than 20% moisture content; and
  • empowers councils to manage burning in the open in their areas.

Public consultation on the draft Policy ended on 15 January 2016 with the final Policy notified on 21 .July 2016 and commencing on 23 July 2016

Waste Strategy for 2015-2020 released

South Australia's Waste Strategy for 2015-2020 was released on 13 November 2015. The strategy aims to reduce the following by 2020:

  • 2003 landfill levels by 35%;
  • municipal solid waste to landfill by 70%;
  • commercial and industrial waste to landfill by 80%; and
  • construction and demolition waste to landfill by 90%.

The strategy focuses on the following priorities:

  • build knowledge and data on waste and recycling;
  • maximise diversion to the extent practically and economically achievable;
  • reduce waste generation by 5% per capita by 2020 (from the 2015 baseline);
  • review and support levies, financial instructions and penalties in relation to landfill;
  • collaborate with waste management sector and businesses in relation to innovative recycling and waste management procedures;
  • research methods to address the challenges of wasteful consumption and how to change behaviour; and
  • realise the potential of creating energy from waste.

The strategy replaces the two previous strategies for 2005-2010 and 2011-2015.

Draft guidelines for the assessment and remediation of site contamination

The Environment Protection Authority has introduced a new draft guideline for the assessment and remediation of contaminated land. The new guideline will supersede the following guidelines and information sheets:

  • Site contamination: What is site contamination? (2009);
  • Site contamination: Determination of background concentrations (2008);
  • Site contamination: How to determine actual or potential harm to water that is not trivial resulting from site contamination (2008);
  • Site contamination: Responsibility for assessment and remediation of site contamination (2009);
  • Site contamination: Honesty in reporting (2008);
  • Site contamination: Guidelines for the assessment and remediation of groundwater contamination (2009);
  • Composite soil sampling in site contamination assessment and management (2005); and
  • Pollutant management for water well drilling (2004).

The draft guideline, once published, will consolidate and update all these documents. The guideline has been prepared to reflect the Authority's practice in applying site contamination provisions in the Environment Protection Act 1993 (SA) (which commenced in 2009) and the 2013 amendments to the National Environment Protection (Assessment of Site Contamination) Measure 1999.

The Authority expects to publish the guideline this year.

Increase in civil penalties under the Environment Protection Act 1993 (SA)

Under the Environment Protection Act 1993 (SA), the Environment Protection Authority can seek a civil penalty from an alleged offender for specific contraventions of the Act. The civil penalty can be sought as a negotiated civil penalty or a court imposed penalty. The "Policy for calculation of civil penalties" creates a framework for the Authority to negotiate consistent civil penalties.

Following recommendations made in the 2013 review of the Policy for calculation of civil penalties, in June 2015 the Environment Protection Authority introduced a new policy for the calculation of civil penalties under the Environment Protection Act 1993 (SA).

The policy provides the following civil penalties calculation:

  • for category 1 offences (actions that cause actual harm), the foundation penalty constitutes 70% of the maximum criminal penalty; and
  • for category 2 or 3 offences (actions that result in potential harm or constitutes an administrative breach), the foundation penalty constitutes 45% of the maximum criminal penalty.

The previous policy capped the foundation penalty at 60 and 35% respectively.

The policy commenced in August 2015.

Local Nuisance and Litter Control Act 2016 (SA)

On 2 December 2015 the Local Nuisance and Litter Control Bill 2015 (SA) was introduced to Parliament and received in the House of Assembly on 24 April 2016. The Bill received assent on 26 May 2016. The Act will commence on 1 February 2017.

The Act, once it comes into operation, will regulate littering and activities that cause nuisance such as noise, smoke and dust. It will also make related amendments to:

  • Local Government Act 1999 (SA);
  • Motor Vehicles Act 1959 (SA); and
  • Summary Offences Act 1953 (SA).

The Act delegates the responsibility for the management of nuisance in the community to the local government. More serious offences and activities that cause nuisances on licensed sites will continue to be managed by the Environment Protection Authority.

The Act also introduces a maximum penalty of $250,000 for corporations and $120,000 or two years imprisonment for individuals for the offence of littering hazardous "class A" waste (asbestos-contaminated material). For "class B" waste (which includes glass, syringes and live cigarette butts) the Act introduces a maximum penalty of $60,000 for corporations and $30,000 or six months' imprisonment for individuals.

Currently councils can only impose a maximum penalty of $5,000 for all types of litter.

The Act will regulate littering and nuisance causing activities through:

  • categorisation of litter classes with increased maximum penalties;
  • application of a presumption of liability on vehicle owners for offences committed in association with or from their vehicle to declare the responsible third party (if any);
  • formalise litter reporting, with such reports being able to constitute evidence of an offence;
  • provision of civil remedies for affected parties; and
  • ability of Minister, councils or administering bodies to negotiate a civil penalty with the offender as opposed to seeking a criminal penalty through the court.


Reformed Financial Assurance System

The EPA has reformed its financial assurance system. Financial assurances are required for certain premises licensed under the Environment Protection Act 1970, and are intended to ensure that funds are available for a clean-up should the business responsible for the damage fail.

Following a consultation process throughout 2015, the EPA has released the following guidelines to clarify financial assurance requirements:

The guidelines were released on 27 April 2016 to clarify how financial assurances will be applied to licences and works approvals, provide an overview of the types of financial assurance that the EPA may consider and when each time of financial assurance may be applied, and assist duty-holders in calculating the financial assurance required as a condition of a licence or works approval for landfills. The following types of financial assurance are available under the guidelines:

  • bank guarantee;
  • guarantee (by deed poll);
  • mutual fund;
  • accumulating third party trust fund;
  • letter of credit;
  • security over land (certificate of title);
  • bond;
  • contract performance bond; and
  • insurance.

There are few significant changes between the draft guidelines and the published version, save that contaminated sites have been included in the list of scheduled activities required to have a financial assurance as a condition of a licence or works (together with prescribed industrial waste management, landfills, bulk storage and container washing).

As a result of the new guidelines, all sites that have a licence condition to maintain a financial assurance will be reviewed against the new model. The EPA will prioritise the implementation based on risk and will work with duty-holders to agree reasonable timeframes for submitting a new financial assurance, setting out the amount (including supporting calculations), types, an overview of the premises and operations, an overview of the company and any information supporting the environmental track record of the company.

EPA guidelines approvals proposal pathway

In August 2015, the EPA released guidelines to assist applicants for environmental approvals through the introduction of an Approvals Proposal Pathway Form (APPF) (publication no. 1560.1). The APPF initiates the approval application process, and provides guidance on the applicable approvals pathway that should be followed in relation to applications for new works, new research, or for current licence-holders seeking an amendment to their current licence.

The seven approval pathways provided for in the APPF are:

  • no approval required;
  • general exemption;
  • exemption under the EP Act;
  • research, development and demonstration;
  • licence amendment;
  • fast-track works approval; and
  • standard works approval.

The EPA pathway selection tool is designed to assist applicants in deciding the appropriate pathway for their application. The EPA uses the tool as a risk-based and responsive model to determine the focus areas for assessment of development proposals. Applicants may use the tool to assist in determining their likely approval pathway prior to submitting the APPF.

EPA guidelines on transportation of industrial waste

The EPA guidelines "Permit to transport prescribed industrial waste" (publication no. IWRG811.10) released in July 2015 provide details about EPA permit requirements for vehicles used to transport prescribed industrial waste (PIW). These requirements apply unless the waste is destined for an exempt site or the net load is less than 50 kilograms and the transporter receives no fee.

In August 2015, further EPA guidelines "Movement of prescribed industrial waste from Victoria" (publication IWRG832.1) were released providing information on the steps to be followed for movements of PIW from Victoria to another State or Territory. These guidelines make clear that EPA approval is required before moving PIW out of Victoria, and highlight that such approval will only be issued if the EPA is satisfied that the PIW will be:

  • reused, recycled or used for the recovery of energy; or
  • destroyed/deposited at a facility with better environmental performance standards than are available in Victoria.

EPA guidelines on environmental auditors

In December 2015, the EPA published a range of updated guidelines relating to environmental auditors, setting out procedures around appointment and conduct, contaminated land auditing, certificates and statements.

The "Environmental auditor guidelines for appointment and conduct" (publication no. 865.11) cover EPA procedures in making, suspending and revoking environmental auditor appointments and the expected conduct of environmental auditors. The guidelines explain the environmental auditor selection process and reiterate that environmental auditors owe a primary duty of care to the environment and Victorians.

Contaminated land auditors should refer to the updated "Environmental auditor (contaminated land): Guidelines for the issue of certificates and statements of environmental audit" (publication no. 759.3), which clarify the roles and responsibilities of the environmental auditor, how to identify the beneficial uses of a site, and contaminated land issues, such as groundwater. The guidelines provide a range of pro forma documents to assist the contaminated land auditor.

The preparation of environmental audit reports on the risk to the environment from an industrial process or activity, waste, substance or noise is regulated by its own guideline ("Preparation of environmental audit reports on the risk to the environment", publication no. 952.5). The guidelines make clear the circumstances in which such an audit is required and how to conduct the audit.

The guidelines on the provision of environmental audit reports, certificates and statements ("Environmental auditor guidelines - provision of environmental audit reports, certificates and statements", publication no. 1147.2) contain particular requirements for electronic submission and retention consistent with the Victorian Governmentfs gLong Term Preservation Formatsh and should be considered carefully by environmental auditors.

Winky Pop v Mobil [2015] VSC 348

In December 2006, more than 486,000 litres of petroleum hydrocarbon leaked from a Mobil Refining Australia Pty Ltd pipeline in Altona, contaminating groundwater on the plaintiffsf land. The plaintiffs were seeking to rezone the land at the time of the leak, intending to develop it for residential purposes. The plaintiffs claimed against Mobil in negligence, nuisance, and for compensation under section 151 of the Pipelines Act 2005 (Vic), and against the State of Victoria in negligence. Mobil accepted responsibility for the leak, however disputed the measure of damages. The plaintiffs claimed that it was entitled to be compensated for loss of opportunity as a result of the contamination. Mobil argued that this was not the appropriate measure of damages, and that damages should be determined by reference to diminution in value of the affected land and the costs of investigating the leak.

The Court held that the proper basis for measurement for damages is diminution in value of the plaintiffsf land. In addition to finding that calculation of damages on a lost opportunity was insufficiently certain, the Court held that prior to the leak, it was unlikely the land would have been rezoned, or permits granted to allow construction of a residential development. The opportunity to develop the land residentially had no real prospect of being successfully pursued, with the result that the land should not be valued on that basis. Accordingly, the plaintiffs had not lost the opportunity as claimed. Further, the leak per se would not necessarily be a permanent impediment to future residential development of the land.

The plaintiffs have appealed the decision to the Court of Appeal. The application for leave to appeal is currently reserved.

Metropolitan Fire and Emergency Services Board v Yarra City Council [2015] VSC 773

In this case, the relevant site was Crown land in the possession of the Council, and was used as an abattoir and quarry, with a brick refuse destructor, tar distilling plant, and a storage tank for coal tar. The site was subsequently sold to the Metropolitan Fire and Emergency Services Board (MFB), which sought a planning permit for the construction of a training facility. The Council granted a planning permit, however construction was delayed when a test hole identified coal tar, and the EPA issued a clean-up notice under section 62A of the Environment Protection Act 1970 (Vic) requiring an assessment to be undertaken of the contamination present on site.

The MFB claimed compensation from Yarra City Council for the costs of complying with the clean-up notice. It also claimed that the Council owed a duty of care not to pollute the site, to ensure that the site was properly cleaned up or remediated before it was sold, and/or to disclose the previous uses of the site to future owners and occupiers to protect the MFB from loss or damage.

The Court held that Council was liable to compensate the MFB for the costs incurred in complying with the clean-up notice, despite the pollution having occurred before the Environment Protection Act commenced. However, it did not agree that the Council owed the MFB a duty to ensure that the site was properly cleaned-up or remediated, or to disclose the prior uses of the land to future owners and occupiers.

The Council has appealed the decision to the Court of Appeal. A hearing is set down for late July 2016.


Review of the Waste Avoidance and Resource Recovery Act 2007 (WA)

In September 2015, the Department of Environment Regulation published its review of the Waste Avoidance and Resource Recovery Act 2007 (WA). The review found that the Act meets its objectives and aligns with government policy. No legislative amendments are proposed; however the State government will continue to implement mechanisms to support better alignment of waste management and disposal across local government and the industry. One of these mechanisms is the Construction and Demolition Product Procurement Incentive Program introduced this year, which provides funding to support the recycling of construction and demolition material.

On 21 October 2015, the Minister for Environment tabled a report on the review in Parliament.

Draft guidance statement on identifying, reporting and classifying contaminated sites

Following review of the Contaminated Sites Act 2003 (WA) earlier this year, the Department of Environment Regulation on 17 September 2015 released a draft guide on identifying, reporting and classifying contaminated sites.

The statement notes that environmental consultants have a professional duty of care to ensure they act in a way that is consistent with protecting human health and minimising environmental harm.

It also confirms that the following persons have a duty to report known or suspected contamination:

  • owners and occupiers of contaminated sites;
  • persons who suspect they have contributed to contamination;
  • contaminated sites auditors engaged to provide a report; and
  • persons who commission a site assessment or voluntary audit ahead of leasing or buying a site have a duty when making the purchase or taking up the lease to report any known or suspected contamination.

However, the statement did not go so far as to require environmental consultants to report known or suspected contaminated sites.

Consultation on the draft guidance statement closed on 12 November 2015. The final version has not yet been published.

Draft Guidance Statements on approval and licensing process

The Department of Environment Regulation published and released a number of new and draft environmental assessment guidance statements throughout 2015 to support the new approval process under Part V of the Environmental Protection Act 1986 (WA).

These include:

  • Regulatory Assessment Framework (consultation closed 11 March 2016);
  • Environmental Risk Assessment Framework (consultation closed 11 March 2016);
  • Regulatory Controls (consultation closed 11 March 2016); and
  • Environmental Siting (consultation closed 5 February 2016).

The final version of these guidance statements have not yet been published.

The published Guidance Statements are:

  • Setting Conditions;
  • Licence and works approval process;
  • Land Use Planning; and
  • Regulatory Principles.

The new Part V approval process is a risk-based approach to the Department's regulatory functions. The Guidance Statements are generally composed of flow charts and tables to explain each step of the process and allow for more transparent, consistent and accountable environmental regulation under the Environmental Protection Act 1986 (WA).

The licensing process is also supported by the draft guideline Annual Audit Compliance Reports which assists licence-holders under Part V of the Act in complying with the preparation of the annual audit compliance report condition.

Draft Guidance Statement on regulation of mine dewatering

On 11 November 2015, the Department of Environment Regulation released a draft guidance statement and a consultation paper on the regulation of mine dewatering. Currently miners are required to obtain approvals to drill bores and extract water from the Department of Water under the Rights in Water and Irrigation Act 1914 (WA) as well as receive works approval from the Department of Environment Regulation under the Environmental Protection Act 1986 (WA) to enable a transfer and discharge of water from the infrastructure. Both departments agree that the regulation of the extraction and discharge of water should be regulated by one entity. The guidance statement administratively removes this duplication.

The draft guidance statement proposes that the extraction and discharge of water is to be regulated by the Department of Water under the Rights in Water and Irrigation Act unless the dewatering discharge has been potentially contaminated or may impact downstream environments. In such circumstances, the Department of Environment Regulation will continue to regulate the extraction and discharge of water.

Draft Environmental Standard on composting

A revised draft environmental standard on composting was released for public consultation in March 2016. Public consultation closed on 16 June 2016. The document sets out the standard for prescribed premises carrying out aerobic composting in Category 67A of Schedule 1 of the Environmental Protection Regulations 1987.

Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.

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Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions