Contaminated Land Management Act 1997

This Act is the Contaminated Land Management Act 1997.

This Act commences on a day or days to be appointed by proclamation.

The general object of this Act is to establish a process for investigating and (where appropriate) remediating land that the EPA considers to be contaminated significantly enough to require regulation under Division 2 of Part 3.

Particular objects of this Act are—

to set out accountabilities for managing contamination if the EPA considers the contamination is significant enough to require regulation under Division 2 of Part 3, and

to set out the role of the EPA in the assessment of contamination and the supervision of the investigation and management of contaminated sites, and

to provide for the accreditation of site auditors of contaminated land to ensure appropriate standards of auditing in the management of contaminated land, and

to ensure that contaminated land is managed with regard to the principles of ecologically sustainable development.

In this Act—

accreditation panel means the accreditation panel convened by the EPA under Part 4.

appropriate person means a person specified in accordance with section 13 as a person who is to be the subject of a management order.

approved use of land means—

a use to which the subject land may be put without planning approval, or

a use to which the subject land may be put under an existing planning approval and for which no further planning approval is required.

approved voluntary management proposal means a voluntary management proposal that has been approved by the EPA under section 17, as modified by any conditions imposed by the EPA under that section.

authorised officer means a person appointed by the EPA under Part 7.2 of the Protection of the Environment Operations Act 1997 as an authorised officer for the purposes of this Act.

Board of the EPA means the Board within the meaning of the Protection of the Environment Administration Act 1991.

CEO of the EPA means the Chief Executive Officer within the meaning of the Protection of the Environment Administration Act 1991.

Chairperson of the EPA Board means the Chairperson within the meaning of the Protection of the Environment Administration Act 1991.

contaminate and contamination are defined in section 5.

costs include expenses.

environment means components of the earth, including—

land, air and water, and

any layer of the atmosphere, and

any organic or inorganic matter and any living organism, and

human-made or modified structures and areas,

and includes interacting natural ecosystems that include components referred to in paragraphs (a)–(c).

Note.

This definition follows that in the Protection of the Environment Administration Act 1991.

environment protection legislation has the same meaning as in the Protection of the Environment Administration Act 1991.

environmental planning instrument means an environmental planning instrument within the meaning of the Environmental Planning and Assessment Act 1979.

EPA means the Environment Protection Authority constituted by the Protection of the Environment Administration Act 1991.

executor means a person acting as executor or trustee in the administration of a deceased estate to whom a grant of probate of a will, or administration with the will annexed, is made.

exercise a function includes perform a duty.

function includes a power, authority or duty.

guideline means a guideline made or approved by the EPA under section 105 and for the time being having effect under that section.

harm means, in relation to the contamination of land, harm to human health or some other aspect of the environment (including any direct or indirect alteration of the environment that has the effect of degrading the environment), whether in, on or under the land or elsewhere.

interested person means, in relation to land, a person referred to in section 13 (2) (a), (b) or (c).

land includes water on or below the surface of land and the bed of such water.

local authority means—

the local council in relation to an area within the meaning of the Local Government Act 1993, or

the Lord Howe Island Board in relation to Lord Howe Island, or

the EPA in relation to land within the Western Division that is not within an area within the meaning of the Local Government Act 1993, or

an authority prescribed by the regulations for the purposes of this paragraph for any place not covered above, or

an authority prescribed instead by the regulations for the purposes of this paragraph for any place wholly or partly covered in paragraphs (a)–(c).

management of land or of contamination of land means management in relation to the actual or possible contamination of the land, including investigation into the existence, nature and extent of contamination of the land and remediation of contaminated land.

management order means an order under section 14 (1).

monetary benefits means monetary, financial or economic benefits.

notional owner—see section 7.

occupier of land means the person who has the management or control of the land.

ongoing maintenance order means an order under section 28 (2).

owner—

in relation to Crown land—

that is the subject of a perpetual lease under the Crown Land Management Act 2016—means the holder of such a lease, and

in any other case—means the Crown.

in relation to other land, does not include a person just because the person has an interest in the land under a lease, licence or permit, and

in relation to land that is not Crown land and is not subject to the provisions of the Real Property Act 1900, does not include a person merely because the person is a mortgagee.

planning approval means—

development consent, or

an approval under the Environmental Planning and Assessment Act 1979, Division 5.2, or

an approval under the Environmental Planning and Assessment Act 1979, Part 3A when that Part was in force or continued in operation.

preliminary investigation order means an order under section 10 (1).

public authority means a public or local authority constituted by or under an Act, and includes—

a government department, or

a statutory body representing the Crown (but not a State owned corporation), or

a member of staff or other person who exercises functions on behalf of a public authority.

records includes plans, specifications, maps, reports, books and other documents (whether in writing, in electronic form or otherwise).

related body corporate has the same meaning as in the Corporations Act 2001 of the Commonwealth.

related entity has the same meaning as in the Corporations Act 2001 of the Commonwealth.

relevant order, restriction or covenant—see section 42A(1).

remediation of contaminated land includes—

preparing a long-term management plan (if any) for the land, and

removing, dispersing, destroying, reducing, mitigating or containing the contamination of the land, and

eliminating or reducing any hazard arising from the contamination of the land (including by preventing the entry of persons or animals on the land).

restorative justice activity—see section 95B (2).

risk includes a long-term risk.

significant contaminant and significant contamination—see section 11 (3).

significantly contaminated land means land described in a notice having effect under section 11.

site audit means a review—

that relates to management (whether under this Act or otherwise) of the actual or possible contamination of land, and

that is conducted for the purpose of determining any one or more of the following matters—

the nature and extent of any contamination of the land,

the nature and extent of any management of actual or possible contamination of the land,

whether the land is suitable for any specified use or range of uses,

what management remains necessary before the land is suitable for any specified use or range of uses,

the suitability and appropriateness of a plan of management, long-term management plan or a voluntary management proposal.

site audit report means a site audit report prepared by a site auditor in accordance with Part 4.

site audit statement means a site audit statement prepared by a site auditor in accordance with Part 4.

site auditor means a person for the time being accredited under Part 4 as a site auditor.

State includes the Government or the Crown.

substance includes matter or thing.

voluntary management proposal—see section 17 (1).

waters means the whole or any part of—

any river, stream, lake, lagoon, swamp, wetlands, unconfined surface water, natural or artificial watercourse, dam or tidal waters (including the sea), or

any underground or artesian water.

Western Division means that part of the State that is the Western Division within the meaning of the Crown Land Management Act 2016.

Note.

The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act.

The power of the EPA to order a person to take specified action under Part 3 includes a power to order the person to refrain from taking specified action.

Notes included in this Act do not form part of this Act.

Contamination of land, for the purposes of this Act, means the presence in, on or under the land of a substance at a concentration above the concentration at which the substance is normally present in, on or under (respectively) land in the same locality, being a presence that presents a risk of harm to human health or any other aspect of the environment.

Contaminate, for the purposes of this Act, means to cause such contamination.

However, land is not, for the purposes of this Act, contaminated land—

merely because in any surface water standing or running on the land a substance is present in such a concentration, or

merely because of the presence of a substance prescribed by the regulations, or

in circumstances prescribed by the regulations.

Land may, for the purposes of this Act, be contaminated land even if it became contaminated partly or entirely by the migration of contaminants into, onto or under the land from other land.

Note.

See also sections 9 (Assessment of risk of harm) and 13 (Responsibility if contamination indirect or delayed or risk arises from change of use).

For the purposes of this Act, a person is responsible for contamination of land (whether or not the contamination is significant contamination) if any one or more of the following is true—

the person caused the contamination of the land (whether or not any other person also caused the contamination of the land),

the contamination occurred because an act or activity of the person resulted in the conversion of a substance that did not cause contamination of the land into a substance that did cause contamination of the land,

the person is the owner or occupier of the land and the person knew or ought reasonably to have known that contamination of the land would occur and the person failed to take reasonable steps to prevent the contamination,

the person carried on activities on the land that generate or consume—

the same substances as those that caused the contamination, or

substances that may be converted, by reacting with each other or by the action of natural processes on the land, into substances that are the same as those that caused the contamination,

unless it is established that the contamination was not caused by the person.

For the purposes of this Act, a person is also responsible for significant contamination of land if either or both of the following is true—

the significant contamination occurred because an act or activity of the person resulted in a change in some pre-existing contamination of the land so that the contamination of the land became significant contamination,

the significant contamination occurred because an act or activity of the person resulted in a change in the approved use of the land and the consequent increase in the risk of harm caused the EPA to identify the land as significantly contaminated land (even if the contamination itself did not change).

In determining whether a person is responsible for contamination of land, it is irrelevant that the contamination did not arise contemporaneously with the act, activity or omission of the person that ultimately was responsible for (or is taken to be responsible for) the contamination of the land.

An act referred to in subsection (2) (b) includes the making of an application for planning approval.

A public authority or Minister does not become a person referred to in subsection (2) (b) merely by giving an approval or consent, or concurring in the giving of consent under the Environmental Planning and Assessment Act 1979.

A person who is responsible for contamination continues to be responsible for that contamination under this Act whether or not the person has entered a contract or other arrangement that provides for some other person to be responsible for the contamination or for any harm caused by the contamination.

For the purposes of this Act, a notional owner of land is a person who is a mortgagee in possession of the land or who has a vested interest with respect to the land—

that carries an entitlement to have a freehold interest in the land vested in the person, or

that enables the person to dispose of or otherwise deal with a freehold interest in the land,

so that the person is able to benefit from the value of the land, or a substantial portion of it, by such vesting, disposal or dealing.

Despite subsection (1), a person is not a notional owner of land—

if the person, not being a mortgagee in possession of the land, is the owner of the land or is the Crown or a person or body representing the Crown, or

merely because the person has a security (such as a mortgage, charge or lien) over the land, or

merely because the person is a legal personal representative of a person who was an owner of the land immediately before the person’s death or the appointment of the representative took effect, or

merely because the person is the NSW Trustee and Guardian and the land is deemed to be vested in the NSW Trustee and Guardian by the operation of section 61 of the Probate and Administration Act 1898, or

if the person would otherwise be a notional owner of land, but—

the person has some security over the land, and

the person (or a financial controller appointed by the person) has entered into a contract to sell the land for the purpose of realising part or all of the value of the land in order to discharge the obligation so secured.

In subsection (2) (e) (ii), financial controller means a receiver, manager or other person who has possession or control of land for the purpose of realising part or all of the value of the land in order to discharge an obligation secured over the land.

It is the duty of the EPA to do the following in a manner and to an extent reasonable in the circumstances—

examine, and respond to, information that it receives of actual or possible contamination of land,

address any contamination that the EPA considers to be significant enough to require regulation under Division 2 of Part 3,

record what it has done under paragraphs (a) and (b) and the reasons for it.

It is the duty of the EPA to respond to a person (other than the EPA or an authorised officer) who has furnished information referred to in subsection (1). The response must—

be made in a reasonable time, and

state what the EPA has done in relation to the information and the reasons for doing it, and

be in writing if the information was in writing.

In addition to any functions the EPA has under this or any other Act, the EPA may take such reasonable steps as it considers necessary in relation to investigating or managing contamination of land (including significantly contaminated land) or the threat of harm from any such contamination.

The EPA is to have regard to the principles of ecologically sustainable development in the exercise of its functions under this Act and is to seek the implementation of those principles in the management by other persons of contaminated land.

In this section, ecologically sustainable development and the principles and programs that relate to it are to be construed according to their meanings in the statements of principle set out in subsection (3) (the principles of ecologically sustainable development).

Ecologically sustainable development requires the effective integration of economic and environmental considerations in decision-making processes. Ecologically sustainable development can be achieved through the implementation of the following principles and programs—

the precautionary principle—namely, that if there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation. In the application of the precautionary principle, public and private decisions should be guided by—

careful evaluation to avoid, wherever practicable, serious or irreversible damage to the environment, and

an assessment of the risk-weighted consequences of various options,

inter-generational equity—namely, that the present generation should ensure that the health, diversity and productivity of the environment are maintained or enhanced for the benefit of future generations,

conservation of biological diversity and ecological integrity—namely, that conservation of biological diversity and ecological integrity should be a fundamental consideration,

improved valuation, pricing and incentive mechanisms—namely, that environmental factors should be included in the valuation of assets and services, such as—

polluter pays—that is, those who generate pollution and waste should bear the cost of containment, avoidance or abatement,

the users of goods and services should pay prices based on the full life cycle of costs of providing goods and services, including the use of natural resources and assets and the ultimate disposal of any waste,

environmental goals, having been established, should be pursued in the most cost effective way, by establishing incentive structures, including market mechanisms, that enable those best placed to maximise benefits or minimise costs to develop their own solutions and responses to environmental problems.

The EPA may, by order in writing served on a person, direct the person to conduct a preliminary investigation of land specified in the order (the specified land) within the time specified in the order to—

investigate whether the land is contaminated with the substances specified in the order (the specified substances) being the substances that the EPA reasonably suspects contaminate the specified land, and

investigate the nature and extent of any such contamination, and

provide to the EPA such information with respect to the investigation as it may require.

A substance may be specified in a preliminary investigation order by reference to a chemical group of related substances if the EPA reasonably suspects that the specified land is contaminated with one or more of the substances in that group. In such a case each substance in that group is taken to be a specified substance for the purposes of this section.

A preliminary investigation order may be served on any one or more of the following persons—

a person who the EPA reasonably suspects may have been responsible for contamination of the land with the specified substance,

an owner of the specified land,

a notional owner of the specified land,

a person who carried on activities on the specified land, but only if the activities are of the sort that—

generate or consume the same substance as a specified substance, or

generate or consume substances that may be converted by reacting with each other or by the action of natural processes on the land into the same substance as any of the specified substances,

a public authority.

In the application of Divisions 5–7 to a preliminary investigation order, any reference in those Divisions—

to significantly contaminated land is taken to be a reference to the specified land, and

to an appropriate person is taken to be a reference to a person on whom a preliminary investigation order may be served.

A person (other than a public authority that is not a person referred to in subsection (3) (a)–(d)) must not, without reasonable excuse, fail to comply with a preliminary investigation order.

Maximum penalty—

for a corporation—$1,000,000 and, for a continuing offence, a further penalty of $120,000 for each day the offence continues, or

for an individual—$250,000 and, for a continuing offence, a further penalty of $60,000 for each day the offence continues.

Without limiting subsection (5), a person has a reasonable excuse if the person was unable to enter land because of the refusal of access to the land by its occupier in circumstances where entry to that land was essential to enable the person to comply with the relevant part of the preliminary investigation order.

If the EPA has reason to believe that land is contaminated and that the contamination is significant enough to warrant regulation under this Division, the EPA may declare the land to be significantly contaminated land.

The declaration is to be made by notice published in the Gazette that—

describes with reasonable particularity the land that is to be significantly contaminated land, and

specifies the substances that the EPA has reason to believe contaminate the land in such a way as to warrant regulation under this Division, and

states the harm that the EPA has reason to believe has been, or may be, caused by the substances, and

advises that declaring the land to be significantly contaminated land does not prevent the carrying out of voluntary management of the land by any person, and

advises that any person may, within a period (not being less than 21 days) specified in the notice, make submissions to the EPA on whether the EPA should serve a management order in relation to the land or on any other matter concerning the land.

Each substance that is specified in the notice under this section is a significant contaminant and the actual or possible contamination of the land by the significant contaminant is significant contamination.

The EPA is to serve a copy of the notice on—

the owner of the land (or, if the EPA does not know the identity or address of the owner, the notional owner of the land, if any, whose identity and address are known to the EPA), and

those persons (whose identities and addresses are known to the EPA) who the EPA has reason to believe are responsible for significant contamination of the land, and

the occupier of the land, and

the local authority in relation to the land, and

if the EPA has reason to believe that a significant contaminant of land originates from the use of a cattle dip site on the land in relation to a treatment ordered under the Biosecurity Act 2015 or the Stock Diseases Act 1923 (an Act repealed by the Biosecurity Act 2015)—the Secretary of the Department of Primary Industries and Regional Development.

The EPA is to publish a policy on its website setting out how it intends to notify the public about—

land that it has declared to be significantly contaminated land, and

land that has ceased to be significantly contaminated land,

and it is to notify the public in accordance with that policy. However, failure to comply with this subsection does not invalidate any notice under this section.

Before declaring land to be significantly contaminated land under section 11, the EPA is to take into account any relevant guidelines and each of the following matters with respect to the substances that the EPA believes cause the land to be contaminated—

whether the substances have already caused harm (for example in the form of toxic effects on plant or animal life),

whether the substances are toxic, persistent or bioaccumulative or are present in large quantities or high concentrations or occur in combinations,

whether there are exposure pathways available to the substances (that is, the routes whereby the substances may proceed from the source of the contamination to human beings or other aspects of the environment),

whether the uses to which the land and land adjoining it are currently being put are such as to increase the risk of harm from the substances (for example, use for child care, dwellings or domestic food production),

whether the approved uses of the land and land adjoining it are such as to increase the risk of harm from the substances,

whether the substances have migrated or are likely to migrate from the land (whether because of the nature of the substances or because of the nature of the land).

The EPA may declare land to be significantly contaminated land under section 11 even if the possible harm could come into existence only in certain circumstances of occupation or use of the land and those circumstances do not exist at that time. However, the circumstances must be reasonably foreseeable, and consistent with the approved use of the land, at that time.