If you or your company receives a clean up notice from a council
or the EPA, sit up, take notice, and swing into action, because a
delay could cost you dearly. A three month delay in taking steps to
comply with a clean up notice recently cost one company over
$157,000 in fines and legal fees.
The recent decision in Cessnock Council v Quintaz is a
harsh reminder to property owners of the dim view the court takes
of delays in complying with directions by regulatory authorities.
In this case, the company Quintaz was fined $112,500 by the Land
and Environment Court, plus over $45,000 in legal fees for what
amounted to a three month delay in taking the first steps required
to comply with a clean up notice.
Clean up notices can require a property owner to take specific
steps to prevent pollution. In this matter, Cessnock Council issued
a clean up notice requiring Quintaz to get an asbestos expert to
inspect piles of materials on a property owned by the company, to
ascertain whether there was asbestos within the piles, and to
develop (and implement) a remediation action plan for the
Quintaz provided an expert report and remediation action plan
approximately three months after they were due. The council
prosecuted the company for failing to comply with the clean up
notice because of the delay.
The court found that there was minimal asbestos on the site,
minimal environmental impact and the asbestos report to be
satisfactory. However despite this, the delay in providing the
report was heavily punished because it was found to undermine the
Protection of the Environment Operations Act and offend
against the objects of the Act, being to minimise actual or
potential environmental harm caused by pollution.
NSW land owners or occupiers who receive a Notice of Proposed
Service of a clean up notice, or a clean up notice should:
read the notice closely and diarise all time limits
make sure you understand what it is asking you to do. If you do
not understand it, or it does not seem reasonable, discuss it with
the council officer concerned and/or seek legal advice
figure out what you need to do to comply, and make enquiries of
appropriate experts who may be needed to undertake work (reports or
testing for example). Find out when they can do the work and get a
report to you
if you think that you cannot comply within the time required
(for good reason), let council know, in writing immediately, and
set out actions you have taken and dates with which you can
not assume that council will give you an extension of time. You
must keep acting to try to comply
remember it is a criminal offence not to comply with a clean up
notice. If you do not comply you may be prosecuted. Maximum
penalties for a corporation are $1million, and for an individual
$250,000. Daily penalties can also apply in addition. This means
that if you are unable to comply within time, or if you delay
because you are seeking legal advice, you risk a penalty.
While it is possible to challenge a clean up notice, the lack of
appeal rights means that the grounds for a challenge are
If you do not understand a notice, or the requirements in the
notice, seek advice. Gadens can assist by making representations to
council, lodging appeals, or assisting you to take the steps
necessary to comply with notices.
This review has abstracts of recent developments relating to pollution and contaminated land in Australian jurisdictions.
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