DRAFT ENVIRONMENT PROTECTION (SITE
CONTAMINATION) AMENDMENT BILL 2004
Key implications for Local Government
Local Government is impacted by the proposed legislation in a number
of respects:
1
As owner/occupier of land, either current, past or future
2
As the relevant authority under the Development Act, 1993
responsible for consideration of development applications.
3
As the responsible authority for the preparation of PARs under the
Development Act, 1993, particularly in the area of rezoning.
4
As a repository of knowledge and information in relation to site
contamination in its area.
5
As the first port of call on many occasions in relation to reports or
complaints of site contamination.
6
As the authority under the Local Government Act, 1999 responsible for
recovery of unpaid rates by taking possession of or sale of land.
7
As the authority under the Local Government Act, 1999, Crown Lands Act
and similar legislation taking on care control and management of land
which may be contaminated.
Specific Provisions of the Bill
Definitions
“prescribed contaminating activity”
The defining of prescribed contaminating activities is to be left to regulation.
A site contamination assessment order (SCAO) under s.103J may be issued if the
Authority suspects that site contamination exists at a site because a prescribed
contaminating activity has taken place there.
The potential financial and legal impact of a SCAO on owners and occupiers of land
(or others defined as the appropriate person) particularly in circumstances where
there is a “prescribed contaminating activity” giving rise to “suspected site
contamination” should be recognised. Given the potential financial and legal impacts
on parties served with the order, the definition of contaminating activities should not
be left to regulation.
Alternatively there should be appropriate advance notice of the proposed scope of
contaminating activities to be prescribed, opportunity for comment and specific
consultation with the LGA.
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Special Provisions and enforcement powers for site contamination Part 10A
s.103A
The potential for the regulations to prescribe “a person of a particular kind to be taken
as an occupier” is concerning, given the responsibility for site contamination
provisions in s.103D being attributed to “occupation” of land. Theoretically Local
Government could be so prescribed, notwithstanding that there may not have been
any relevant occupation of land but some management or other regulatory role.
The Bill should make it explicit as to the intention of the prescription of particular
kinds of persons for these purposes or alternatively describe the kinds of persons
who may be taken to be occupiers (or in occupation) for the purposes of the Act.
s.103B
The inherent difficulties of establishing when and if the chemical substances were
present on the land and the occurrence of environmental harm need to be
recognised. Many sites which will be affected by this legislation will not have been
subject to any form of recording or assessment of site contamination at the requisite
time. The existence of baseline studies to determine the condition of land at the time
it changed hands or changed land use, prior to say 1990 will be very rare.
The existence of chemical sites and environmental harm at particular points of time
(and therefore attributable to particular persons) will be extremely difficult to
establish, or in fact disprove. Given the significant legal and financial implications for
past, current and future owners of land, consideration needs to be given to a more
equitable approach to determination of these issues.
Establishing the criteria under s.103B will largely be a matter of supposition and
reliance on often incomplete site history. The proposed methods of apportioning
responsibility in s.103C and s.103D, and recognition that the likely responsible
parties may escape responsibility, make it imperative that a more practical and
equitable method of establishing when and if site contamination occurred.
s.103C - Site Contamination Assessment Order (SCAO)
“appropriate person” The reality of this provision is that in many cases, responsibility
will “default” to the current owner of the site, notwithstanding that the actual
responsibility lies elsewhere. Entities such as local government which operate in
perpetuity and in a comparative sense, have adequate resources to fund
remediation, will arguably suffer a disproportionate level of “default” responsibility,
given the number of situations in which those responsible cannot be pursued.
It is recognised that in reality, many responsible parties who are actually responsible,
will not be pursuable. However the resulting responsibility then falling on the owner
(as a default responsibility) is not equitable. If governments have a commitment to
assessment of sites, then adequate provision from governmental resources or funds
should be made available to undertake assessment of these sites, rather than
creating a de facto liability on the “last man standing” (ie the current owner). This is
particularly inappropriate when the financial and legal impacts of receipt of a Site
Contamination Assessment Order. See s.103J(6).
Local Government is particularly vulnerable as owner of sites given that it is not likely
to fall into any of the “exempt” categories in s.103C(3).
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s. 103D – Responsibility for Site Contamination
The issues discussed under s.103B relating to establishment of actual responsibility
and the times that the activities took place are relevant here. The intention to
allocate responsibility to the actual polluter is commendable however the reality is,
that in many cases responsibility may fall elsewhere (on those parties who have no
actual responsibility for the condition of the land).
As discussed under s.103C, this is a policy issue which should be dealt with by
government and the appropriate resources provided to deal with sites where the
actual polluter cannot be made responsible for one reason or another. It is not
equitable to expect owners (see s.103C(1)(b)) to shoulder the responsibility. There
should be appropriate public funding to deal with these situations.
There appears to be a very wide discretion in the Authority to determine the parties
responsible or not as the case may be see ss(3) and (4). This whole issue needs to
be dealt with as a matter of policy, with adequate funding and assistance provided for
doubtful sites, rather than leaving this in the hands of the Authority, particularly
without any criteria for the making of these decisions.
s.103F - Responsibility subject to determination of the Authority
Again these provisions give significant discretion to the Authority to absolve
“responsible” parties from responsibility, based on an assessment by the Authority of
whether a purchase price reflected knowledge about the condition of the site.
Arguably this will be a very difficult determination to make in many circumstances.
s.103H - Authority may determine that public authority is appropriate person
“Public authority” is defined in the Act as the Minister, a statutory authority or a
council.
It anticipated that this provision would not be supported by Local Government for the
reason that there are no circumstances in which it would be appropriate to assign
responsibility to a Council under this section. If there are situations in which a
Council should be the recipient of an order as the person responsible for pollution,
then it is only in those circumstances where a Council should be assigned
responsibility.
In any event the discretion given to the Authority is too wide and the provision for
appropriate consultation too open ended and discretionary. The provision is opposed
unless the potential for assignment of responsibility of a Council is removed.
s.103J - Site Contamination Assessment Orders
If the appropriate person is to be a person who was not actually responsible for
contamination there should be appropriate recognition of this position in the
legislation. It seems inappropriate to have the ability to enforce these provisions as
breach of the Act against such persons, particularly with the significant penalties and
legal implications which may follow.
In lieu of these provisions there should be actual incentives and assistance to comply
with the orders. Better still the government should assume responsibility for
assessment as a matter of policy in situations where the actual polluter is determined
not to be responsible.
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s.103K - Site Remediation Orders
The submissions in relation to s.103J apply to these provisions.
s.103O - Action on non-compliance with Site Contamination Assessment Order
or Site Remediation Order
The submissions in relation to s.103J apply to these provisions.
103P - Recovery of costs and expenses incurred by Authority
The submissions in relation to s.103J apply to these provisions.

Applicability of the Bill to former Commonwealth owned land
The subject of the applicability of State legislation to the Commonwealth is a complex
area. In terms of the issues raised under the Bill, the main impacts on Local
Government relate to land formerly in the ownership of the Commonwealth but now
in the ownership or under the management of a Council, or such land within the area
of a Council, now in private ownership, where the Council may be required to
consider a development application in relation to that land.
For example, where land is transferred from Commonwealth ownership either prior to
or after the commencement of Part 10A of the Bill, it will probably not be possible to
pursue “the person principally responsible for site contamination” if that ‘person’ is
the Commonwealth because the Commonwealth (and its agencies and
instrumentalities) is arguably not subject to State laws. The ability of the Authority to
serve orders under the new Part 10A is therefore brought into question.
An option may be to seek that the State Government enter into arrangements with
the Commonwealth Government to ensure that those parties who are “principally
responsible” under the proposed legislative amendments, take responsibility where it
is warranted notwithstanding that they may not be bound by the Act.
These issues will be further pursued in discussions between the LGA and State
Government.
Development Act Proposed Amendments
As the relevant authority under the Development Act for most development
applications and as a body responsible for initiating amendments to the Development
Plan, Local Government has a vital interest in the proposed amendments to the land
use planning processes foreshadowed in the Explanatory Document.
It is understood that the State Government is currently considering these
amendments and further information is expected in the near future. This is an
important issue for Councils particularly given the potential benefits of considering all
proposed amendments together.
Sybella Blencowe, Lawyer
October 2004
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