Australia: A New System Of Contaminated Land Regulation Proposed For NSW. Introducing The Contaminated Land Management Bill 2008 (NSW)

Last Updated: 21 November 2008
Article by Jacinta Studdert and James Smith

In recent years there has been an increase in redevelopment of industrial land to residential land in NSW. As a result, regulatory focus on the management and control of contaminated land has increased. Due to the growing awareness of the impact of contaminated land on the environment and human health, the NSW Government introduced The Contaminated Land Management Act 1997 (NSW).

The Act establishes a process for investigating, managing and remediating sites. After a five year statutory review and the release of the Contaminated Land Management Amendment Bill 2007, it is clear that, although the Act significantly improved the management of contaminated sites in NSW, there are still a number of concerns about the operation of the Act. Consequently, the Contaminated Land Management Bill 2008 (NSW) has been drafted to clarify how contaminated land will be better regulated. This includes removing unnecessary regulation, strengthening investigation and duty to notify requirements, clarifying reporting and disclosure of information arrangements, expanding cost-recovery provisions, providing for voluntary offset arrangements and strengthening the false and misleading information offence.

The Contaminated Land Management Amendment Bill 2008

The Bill was introduced to Parliament on 26 June 2008 following the release last year of the draft Contaminated Land Management Amendment Bill 2007 for public consultation. The Bill contains some differences from the earlier bill. The Bill proposes to fundamentally alter the way in which contaminated land is regulated and managed in NSW including the requirements to notify contamination to the EPA.

Key Changes

Preliminary investigation orders

The Bill changes the current process to allow investigation and remediation to be conducted concurrently under management orders and/or approved voluntary management proposals. The Bill introduces a new power to enable the EPA to require certain persons to carry out the preliminary contaminated site investigation to identify whether the land is significantly contaminated, the nature and extent of the contamination, and whether the contamination is significant enough to warrant regulation. The Bill provides no direct right of appeal against the EPA issuing a preliminary investigation order.

The protection of a Voluntary Remediation Agreement under the Contaminated Land Management Act 1997 (NSW) has been removed, whereby the EPA can still issue an order or require ongoing management action to be undertaken regardless of compliance with a voluntary agreement. The Bill also confirms the "polluter pays" principle, that is, those who generate pollution and waste should bear the cost of containment, avoidance or abatement.

Management Orders

Once the contaminated land is declared to be significantly contaminated land the EPA is able to make a "management order" in respect of that land requiring a person or persons to investigate and remediate the contamination of the significantly contaminated land. The Bill clarifies that a management order can be issued to one or more persons who are responsible for the contamination. The Bill also clarifies that the EPA can issue clean-up and prevention notices under the Protection of the Environment Operations Act 1997 (NSW) in relation to significantly contaminated land, regardless of whether it is the appropriate regulatory authority under that Act.

Significant Risk of Harm

The Significant Risk of Harm test has partially been re-introduced, having been removed under the draft Bill released in 2007 for public consultation, although the Bill as finally introduced into Parliament has given the EPA greater discretion to decide whether a site is contaminated and whether such contamination is significant enough to warrant regulation. The Bill provides for this by replacing the phrase "significant risk of harm" with "significantly contaminated land". The EPA must still take into account any increase in the risk of harm that arises from the current and approved uses of land, as well as referring to the existing guidelines.

Duty to Notify

A person is required to notify the EPA, as soon as practical, after the person becomes aware of the contamination of land. The Bill clarifies that persons will be taken to be "aware" of contamination if that person ought "reasonably" to have been aware of the contamination. The Bill takes into account the person's abilities, experience, qualifications and training; whether persons could reasonably have sought advice that would have made it aware of the contamination; and the circumstances of the contamination.

New Offset Arrangements

The Bill proposes to allow the Minister to enter into offset arrangements with the party responsible for contamination, where, if it is not practicable to remediate (meaning "long term management") the contamination within a reasonable time, the contamination may be offset by providing community assistance. This amendment will provide a way of mitigating the community impacts of contamination. The offset arrangements can only be applied to a person responsible for the contamination and cannot include direct financial compensation.

What does this mean for you?

The proposed amendments are likely to bring certainty as to the trigger for mandatory reporting by removing the significant risk of harm test and making the reporting threshold referable to guidelines. However, the change to the reporting threshold is likely to mean that there will be a significant increase in the number of sites required to be notified, and organisations will need to be vigilant to ensure that information is disseminated in circumstances where they "ought" to be aware of contamination.

The introduction of preliminary investigation orders will give the EPA far greater powers than at present to require an early assessment of whether land is contaminated, without also being satisfied that the contamination presents a significant risk of harm. The opportunity to make preliminary investigation and management orders against more than one person will also mean that the EPA need no longer be concerned to ensure that it has selected the most appropriate person as the recipient of the order.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Jacinta Studdert
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.