On 1 July 2021, Victoria introduced a new environmental protection framework, amending the Environment Protection Act 2017 (Vic) (“the Act”). Under this new framework, there have been a number of important changes to the contamination management and liability provisions. It’s important for both landowners and land occupiers to familiarise themselves with their obligations related to contaminated land.
Of particular importance are the various duties imposed to actively minimize and prevent risks of harm. These duties have important ramifications for landowners and occupiers alike so understanding how to comply with them is essential.
We outline each of the relevant duties and their requirements below.
General Environmental Duty (GED)
The GED is provided for under s 25(1) of the Act and states that:
‘a person who is engaging in an activity that may give rise to risks of harm to human health or the environment from pollutions or waste must minimise those risks, so far as reasonably practicable.’
If you are engaging in activities such as development or earthworks on your land, you will need to carefully consider how these activities may be impacting the environment or human health. Therefore, an important step in complying with this duty will be to first identify any risks of harm that your activities may give rise to.
If you have identified potential risks of harm through contamination under this duty, you will need to ensure that you ‘minimize those risks, so far as reasonably practicable’. Section 6 of the Act provides guidance on what factors are considered in determining what is ‘reasonably practicable’.
Those factors include:
- the likelihood of the identified risks eventuating;
- the degree of harm that would result from those risks;
- what you know or ought reasonably to know about the harm or risks of harm and any ways of eliminating or reducing those risks;
- the availability and suitability of ways to eliminate or reduce those risks; and
- the costs of eliminating or reducing those risks.
Duty to Manage Contamination
If your land has been contaminated, section 39 of the Act requires you to:
‘minimise the risk of harm to human health and the environment from the contaminated land so far as reasonably practicable.’
What is contaminated land?
Section 35 of the Act defines contaminated land as land where:
‘waste, a chemical substance or a prescribed substance is present on or under the surface of the land… [and is] in a concentration above the background level, and creates a risk of harm to human health or the environment’.
Section 36 of the Act notes that the ‘background level’ are those levels that are specified in the Regulations.
How do I manage contamination by minimising risks of harm?
Under section 39(2) of the Act, you may minimise the risks of harm by doing the following:
- Identifying the contamination that you ‘know or ought reasonably know of’;
- Arrange for an ‘investigation or assessment of the contamination’;
- Arrange for the contamination to be cleaned up; and
- Providing information to anyone that you believe may be affected by the contamination.
It is important to note that the costs of managing contaminated land can be high, therefore, prior to purchasing or leasing land it would be prudent, as part of your due diligence, to investigate whether such land is contaminated or may be contaminated.
What if I didn’t cause the contamination - do I still have to manage it?
Even if you are not responsible or did not cause the contamination to the land, you will still be required to take steps to manage the contamination under section 39 of the Act, as ‘a person in management or control of [the] contaminated land.’
However, section 39(3) of the Act does provide a means for the recovery of ‘any reasonable costs’ that you have incurred in complying with section 39 of the Act from those who caused your land to become contaminated.
The Duty to Notify the EPA of contamination
Under section 40 of the Act, if your land has been ‘contaminated by notifiable contamination’ you must notify the EPA as soon as you are aware of or ‘reasonably should have become aware of’ the contamination. In determining your awareness of the contamination, the following factors are taken into consideration:
- Your skills, knowledge and experience;
- Whether you could have sought advice about the contamination; and
- The circumstances of the contamination.
What is a notifiable contamination?
A ‘notifiable contamination’ as defined under section 37 of the Act, is a contamination that is a ‘prescribed notifiable contamination’ as set out in the Regulations, or a contamination for which the reasonable cost to resolve or manage the contaminated land is greater than $50,000.
The Regulations set out the requisite thresholds of contamination, and it is only where the contamination reaches or exceeds the prescribed thresholds that a duty to notify the EPA arises.
How do I notify the EPA of the contamination, and what should I tell them?
If there has been contamination of your land and you are required to notify the EPA, you will need to give notice to the EPA in the approved form. You can view the requirements to notify of contaminated land on the EPA website.
Section 41(2) of the Act also sets out the information that you are required to provide to the EPA when making a notification. Such information includes:
- Details of where the land is located;
- The activities that you carried out on the land which has caused or is suspected of causing the contamination;
- The nature and extent of the contamination to your land; and
- The risks of harm to human health and the environment.
You will only need to give the EPA the information that is ‘known to [you] at the time of giving notice’. However, if you subsequently become aware of any further information in relation to the contamination, you will need to advise the EPA of this as soon as practicable after you become aware of it.
Get help from a property lawyer
If you are a landowner, currently leasing, looking to lease, sell or purchase property and are unsure about how you will be impacted by the new duties and provisions under the Environment Protection Act 2017 (Vic) contact one of our lawyers for guidance and assistance.
Contact David Davis Lawyers
Phone: 03 9014 1299
Email: admin@ddavis.com.au