Australia: Further Update On The Obligations Of Individuals And Companies On The Commencement Of The Contaminated Land Management Amendment Act 2008 (NSW)

Last Updated: 16 July 2009

Article by Jacinta Studdert, Susan Rose and Kate Doherty

On 1 July 2009 major amendments to the Contaminated Land Management Act 1997 (CLM Act) commenced. Key amendments to the CLM Act include:

  • removal of the 'significant risk of harm' trigger for reporting contaminated land and the replacement with trigger values, which depend on the level of contamination;
  • broadening the definition of persons responsible for contamination; and
  • imposing a strict duty on individuals and companies to notify the Department of Environment and Climate Change (DECC) of contamination under section 60 of the CLM Act.

There are substantial penalties for failing to comply with the notification requirements under section 60 of the CLM Act as amended and companies should ensure that they have appropriate compliance measures in place. Ideally, a review of existing environmental management systems should have been undertaken and relevant management plans, procedures and contracts updated to enable risks associated with potentially contaminated land to be identified and strategies on how to manage those risks to be implemented.

The CLM Act Requirements

The amendments to the CLM Act represent a significant shift in contaminated land management within NSW and include key changes in the following areas:

  • preliminary investigation orders that require potentially contaminated land to be investigated (s 10 of the CLM Act as amended);
  • replacing the significant risk of harm test and giving the Environment Protection Authority (EPA) broader powers to regulate 'significantly contaminated land' (ss 11 and 12 of the CLM Act);
  • management orders that require landholders to investigate, remediate and monitor significantly contaminated land (ss 13 to 16 of the CLM Act);
  • broadening the range of persons responsible for contamination and potentially subject to preliminary investigation or management orders (s 6 of the CLM Act);
  • imposing greater obligations on persons by placing them under a duty to notify the DECC upon becoming 'aware' of the contamination (s 60(4) of the CLM Act); and
  • environmental offset arrangements that may be entered into where it is not practicable to remediate the contamination within a reasonable time (s 111A of the CLM Act).

Further information on the new requirements are detailed in the Deacons Legal Update 'Significant legislative changes to the regulation of contaminated land in NSW' published following the assent of the legislative changes under the Contaminated Land Management Amendment Act 2008 in December 2008.

Why consider the new CLM Act requirements?

Failure to properly consider and comply with contaminated land requirements may lead to project delays and additional costs, which may be significant. Potential delays are likely to arise in circumstances where contamination is discovered and work must cease to enable appropriate investigation, assessment, remediation and monitoring to be carried out. Assessing and managing contamination land issues, and in particular carrying out remediation works, is often costly and time consuming. Proactively addressing any potential issues is therefore recommended.

Individuals and companies that fail to properly consider contamination also leave themselves exposed to potential prosecution. Under the recent amendments, failure to report contamination to the DECC may result in penalties of up to $165,000 for corporations and $77,000 for individuals, if convicted (s 60 (1) and (2) of the CLM Act as amended). Additional penalties of up to $77,000 for corporations and $33,000 for individuals may also be imposed for each day that the offence continues (s 60 (1) and (2) of the CLM Act).

Duty to report

There is a duty for landowners and persons who have responsibility for contamination to report this to the DECC under section 60 of the CLM Act. Individuals and companies should be aware that:

  • a person is required to notify the EPA, as soon as practical, after the person becomes aware of the contamination of land (s 60 (4) of the CLM Act);
  • this requirement applies to a person whose activities have contaminated land and a land owner whose land has been contaminated, regardless of whether they were responsible for the contamination (s 60 (1) and (2) of the CLM Act);
  • persons will be taken to be "aware" of contamination if that person ought "reasonably" to have been aware of the contamination (s 6(1)(c) of the CLM Act); and
  • in reaching this conclusion, the DECC will take 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 (s 60(9) of the CLM Act).

The Guidelines

The DECC has released 'Guidelines on the Duty to Report Contamination under the Contaminated Land Management Act 1997' (Guidelines), which are designed to assist individuals and companies to understand their reporting obligations under section 60 of the CLM Act, as amended. The Guidelines, made under section 105 of the CLM Act, also provide guidance as to how the EPA, through the DECC, will assess and determine whether or not contamination is significant enough to require regulation.

It is important to note that only Part 1, the 'Introduction' to the Guidelines and Part 3, 'DECC regulatory actions' commenced on 1 July 2009, with Part 2 'Duty to Report Contamination' and the Appendices scheduled to come into force on 1 December 2009.

The appropriate weight to be given to the Guidelines is set out under section 105(2) of the CLM Act, which states that the DECC is under a duty:

  • to take the Guidelines into consideration whenever they are relevant; and
  • to depart from the Guidelines in individual cases when any law requires that departure or the interests of the public, justice or the administration of this Act make it necessary to do so.

Determining whether to report

The Guidelines assist individuals and companies to assess whether they have a duty to report under section 60 of the CLM Act1. Factors to be considered in determining whether to report include whether there are any indications of potential contamination based on the current and previous land uses, and site inspections.

A checklist is provided as a guide on whether or not to report, together with a list of examples of physical indicators of contamination to assist with site inspections2.

Notification triggers

Notification of actual or foreseeable contamination is required if a contaminant is present at specified levels identified in Appendix A of the Guidelines, and if certain other factors are met as set out in section 2.3 of the Guidelines. The requirement to notify arises in relation to:

  • onsite soil contamination;
  • off-site soil contamination of neighbouring land;
  • contamination of groundwater or surface water; and
  • the foreseeable movement of contaminants.

The contamination thresholds set out in Appendix A of the Guidelines vary depending on the media tested (soil, groundwater, freshwater and marine water). For soil contamination the contaminating substances are categorised in sections covering metals and metalloids, organics, petroleum hydrocarbon components and others. The acceptable level of soil contamination depends on the current or approved use, with the lowest levels for residential use with accessible soil, followed by parks and recreational areas, residential with minimal soil access (such as apartments) and the highest levels allowed for commercial and industrial uses. For example, the trigger threshold for cadmium in the soil of a recreational park is 40 milligrams per kilogram, whereas it is 100 milligrams per kilogram for soil contamination at a commercial site. Only a single threshold value is set for the different respective chemical contamination of groundwater (based on drinking water standards) and for fresh water and marine water (based on the Ecosystem of 5% species protection value).

Form of report and information provided

Once an individual or company establishes they are under a duty to notify, the 'Site Contamination Notification Form' in Appendix B of the Guidelines will need to be completed and submitted to the DECC (s 60(6) of the CLM Act).

Except for proceedings relating to section 60 of the CLM Act, information provided by a person in complying with the section 60 duty to report is not admissible by the DECC as evidence in any other proceedings against that person for offences under other environment protection legislation administered by DECC(s 60(7) of the CLM Act).

How the DECC assess the significance of contamination and whether regulation is warranted

Upon receiving a report under section 60 of the CLM Act, the DECC will assess the information, and any other relevant information to which it has access, to determine whether the contamination is significant enough to warrant regulation (section 3.1 and 3.2 of the Guidelines). Section 12 of the CLM Act specifies the matters that the DECC must consider when declaring land to be significantly contaminated land. This includes any relevant guidelines, such as the Guidelines, and whether the:

  • substances have already caused harm or are likely to cause harm (s 12(a) of the CLM Act);
  • substances are toxic, persistent or bioaccumulative, or are present in large quantities or in high concentrations, or occur in combinations (s 12(b) of the CLM Act);
  • existing or approved uses of the subject and adjoining land will increase the risk of harm from the substance, for example childcare centres (s 12(d) and (e) of the CLM Act); and
  • substances have migrated, or are likely to migrate, from the land, either because of the nature of the land or the substances (s 12(f) of the CLM Act).

The DECC also has a general obligation under section 8 of the CLM Act to respond within a reasonable time to a person who has furnished information about actual or possible contamination of land, and to record what it has done and the reasons for doing it.

Regulation powers of the DECC

Once the DECC determines that the subject land warrants regulation, it has the power to take several actions under Part 3 of the CLM Act as amended, which include:

  • issuing management orders requiring site assessment, remediation and/or monitoring(ss 13 to 16 of the CLM Act);
  • agreeing to voluntary management proposals from interested parties to manage the land voluntarily (section 17 of the CLM Act); and
  • issuing a clean-up or prevention notice under the Protection of the Environment Operations Act 1997 (s 46 of the CLM Act).


As the powers of the DECC to regulate contaminated land widens, and the responsibilities of landowners increase (regardless of whether they caused the contamination) it is important that both individuals and companies are aware of their obligations under the amended CLM Act and assess and manage their potential liabilities. Organisations will need to be particularly vigilant to ensure information is disseminated and the DECC is notified in circumstances where the organisation 'ought' to be aware of contamination.

Determining whether you have a duty to notify is not always clear and may require that preliminary site investigations are undertaken. If you are not sure of your obligations we recommend that you seek legal advice and consider engaging an suitably qualified consultant to undertake any necessary sampling and provide expert advice having specific regard to the CLM Act and Guidelines.


1 Section 2.1 of the Guidelines

2 Section 2.2 of the Guidelines

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.

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”

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
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 you may opt out by clicking here

    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.

    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.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    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.

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