Australia: Property Views, Contaminated Land and the Environment
NSW Planning, Environment and Government Update

Contents

• Time to 'fess up? New duties to report contaminated land are now in force
• Under-siege Department of Planning introduces new Meeting Code, to address claims of pro-developer bias
• How hard would you fight to preserve your property's view? Proposal to give Land and Environment Court power to order hedges / trees to be removed to preserve neighbours' views and sunlight

Time to 'fess up? New duties to report contaminated land are now in force

By Anthony Whealy of Gadens Lawyers, Sydney

On 1 December 2009, new Guidelines on the Duty to Report Contamination commenced in NSW, setting in place triggers that automatically require contamination to be reported to the EPA/DECC. This duty arises "as soon as practicable after the person becomes aware of the contamination" and applies to:

• an owner of land; or
• a person whose activities have contaminated the land (usually a tenant or builder).

The actual duty to report contamination has been a feature of the Contaminated Land Management Act since its introduction in 1997, however that Act was significantly overhauled on 1 July this year, as explained in our May 2009 update ( click here to read). One of the key changes is that the duty to report contamination applies where a person is actually aware or "reasonably ought to have been aware" of the contamination. This shifts an emphasis onto land owners or occupants to have adequate systems of due diligence in place to proactively consider whether their land is or might be contaminated. It will not be sufficient to claim a lack of knowledge of contamination if a person "reasonably ought to have been aware" of contamination. The duty to report contamination cannot be ignored, given that it applies both to corporations and individuals, and now carries increased penalties of $165,000 for a company, with a further $77,000 for each day the offences continue.

Although these provisions have been in place since 1 July 2009, they could not in practice operate until the accompanying Guidelines commenced, because the Guidelines contain the actual trigger levels for identifying what level of contamination needs to be reported. This has been referred to in industry circles this year as a 'reporting holiday'. The holiday is over as the Guidelines have now commenced.

The objective of these amendments to the Act was to remove the previous, somewhat vague duty to report contamination which "presents a significant risk of harm", and to instead provide new clearer, more objective criteria for the triggers that will require persons to report contamination. While this is achieved, the Guidelines and triggers are highly technical and will typically not be able to be understood and applied without specialist expertise. For example, the duty under s.60 arises where:

• the level of contamination exceeds the levels specified in the Guidelines, and people have been or foreseeably will be exposed to the contamination; or
• the contamination has or foreseeably will enter the land, or surface water, or groundwater, or neighbouring land, and the contamination exceeds or will foreseeably exceed the levels set out in the Guidelines, and will foreseeably remain above that level.
• The Guidelines then specify the various levels that apply to 5 particular categories of contamination (onsite soil', 'offsite soil', 'foreseeable contamination of neighbouring land', 'groundwater' and 'surfacewater or groundwater discharging into surfacewater').

Although these Guidelines are in some respects highly technical, they expressly state that a factor that will be taken into account (in determining whether a person or corporation has breached its reporting duty) is whether the person or corporation "could reasonably have sought advice". This creates a clear obligation for landowners and tenants to be proactive in having environmental due diligence procedures in place for any circumstances where contamination issues might arise.

It is yet to be seen, but in our view it is possible that where a purchaser of land later discovers contamination that had not been reported to the EPA/DECC, a failure by the previous owner to have reported the contamination may now assist the purchaser to take civil proceedings against the vendor, seeking damages. Sale contracts will need to be carefully worded in that regard.

The process of reporting contamination is achieved through a standard form contained in the Guidelines. The consequence is that the EPA/DECC will then decide whether the contamination is "significant enough to warrant regulation", in which case the authorities may require remediation. For further information on the new regulatory options available to the EPA/DECC, see our May 2009 update, or contact us.

Anthony Whealy commented on the new contamination Guidelines and legislation in the SMH on Saturday 30 November 2009. Let us know if you are interested in obtaining that article.

Under-siege Department of Planning introduces new Meeting Code, to address claims of pro-developer bias

By Anthony Whealy of Gadens Lawyers, Sydney

On 1 December, the Department of Planning set in place a new Code to regulate and record meetings between Departmental staff and developers, lobbyists and the like. Already this week however, the Commissioner for ICAC has criticised the new Code for not going far enough and in particular, for not applying to the Planning Minster himself.

The Code was introduced in the wake of two related issues:

1. a series of embarrassing, highly-publicised Land and Environment Court decisions which found that approvals by the Planning Minister (at the time) were tainted due to 'apprehended bias' (explained below); and
2. a parliamentary inquiry following the assassination of Sydney businessman Michael McGurk, in which allegations of bribery and corruption surrounding land dealings at Badgerys Creek were made against senior NSW Government officials, and in which much attention was focussed on private meetings and discussions between State Government planning officials and lobbyists acting for developers. The Inquiry prompted the then NSW Premier, Nathan Rees, on 14 November 2009, to announce that the Labour Party will no longer accept donations from developers, effective immediately.

In relation to the Land and Environment Court decisions, the Court held that planning approvals at Catherine Hill Bay and Huntlee were tainted and therefore invalid on the basis that the then-Planning Minister had reached private agreements with the developers ("land bribes" as one Judge unkindly put it) and had therefore given rise to 'apprehended bias'. The test for apprehended bias is:

The concept of apprehended bias is gaining serious momentum in the Courts, being raised in many current Land and Environment Court proceedings that we are aware of. It applies equally to local councils (although it can be more difficult to establish bias of a group of persons (councillors) than an individual Minister). The test outlined above does not require there to be actual bias, but rather the test is all about perceptions - whether a fair minded observer might think that the Minister might be biased.

In these circumstances, the former Minister was quick to issue media releases in response to the Catherine Hill Bay and Huntlee decisions, in each case undertaking to ensure that future planning applications for those sites would be dealt with at arms length and by independent planning authorities.

In addition, the Department of Planning this month released a Meeting Code of Practice to regulate the contact between Department of Planning officials and property developers, their representatives, community groups and opponents. The Code, entitled 'Meeting and Telephone Communications', became effective on 1 December 2009, and according to Kristina Keneally, will 'strengthen and improve transparency in the planning system', 'particularly in relation to interaction with lobbyists'.

The Code regulates both 'Face to Face Meetings' and 'Telephone Discussions' in relation to specific planning and/or development proposals. It does this by outlining the steps to be followed by Departmental staff when setting up and conducting a meeting or taking a telephone call. Meeting requests must now be sent in writing to the Department, the meeting must be conducted on-site, at a Government office or at a council. Comprehensive minutes must be kept and registered lobbyists involved must be noted.

There is no indication whether this Code will be extended to the conduct of councillors, but as councils are equally exposed to accusations of apprehended bias, many councils are likely to implement similar meeting codes.

Strangely though, the Department's Code does not apply to the Planning Minister himself – a point that has been identified by the Commissioner of ICAC this week, who has reportedly written to Kristina Keneally suggesting that the Code has been rushed and requires improvement, stating that it "is not enough to ensure appropriate practices by public officials", and that the Code ''should be amended to ensure that analogous safeguards and controls apply, where practicable, to the minister and the minister's staff."

For further information on apprehended bias or the new Code please contact us.

How hard would you fight to preserve your property's view? Proposal to give Land and Environment Court power to order hedges / trees to be removed to preserve neighbours' views and sunlight

By Anthony Whealy of Gadens Lawyers, Sydney

In breaking news, the Attorney General's Department has indicated that it will take up recommendations to give the Land and Environment Court the power to hear and resolve disputes between neighbours about high, dense hedges that are causing a severe impact on views from, or solar access to, a dwelling.

The proposal, which is the result of a review of the Tress (Disputes Between Neighbours) Act 2006, seeks to close the loophole in the NSW planning system whereby neither councils nor the Courts currently have any power to order trees to be removed, even where they have been planted purely to spite a neighbour by blocking out views and solar access. Because the planting of trees is not building or construction work, no development consent (approval) is needed to plant trees (other than where an approved landscape plan is in place and needs to be adhered to). The consequences can often be devastating, particularly in coastal locations, but also in any location where the trees block access to sunlight.

For example, we are aware of a matter where a developer was unable to obtain approval for a new unit block because of the devastating impact on ocean views to a neighbour. The developer therefore planted a mature, dense bamboo hedge which obliterated the neighbour's ocean views. The council was powerless to intervene. The developer subsequently lodged the DA again, this time noting that there were no view impacts because the bamboo hedge had already eliminated any ocean views. The Council agreed and approved the development application!

Under the proposed legislation, the neighbour will be entitled to commence Land and Environment Court proceedings seeking an order that the bamboo hedge be removed.

Importantly though, the proposed new legislation will only apply to hedges "that are both high and give the effect of a solid barrier" and that "are causing severe impact for a dwelling". It will not apply to individual trees. At this stage no definition of "hedge" has been provided, but it would be expected to include conifers (such as the infamous Cupressocyparis leylandii 'Leightons Green') and bamboo.

We expect an amended bill to be prepared early in the new year, to be debated in both Houses of Parliament before being assented to and becoming an Act. Watch this space.....