22nd May 2023
The following blog has been written by Gabrielle Guthrie.
Gabrielle Guthrie is a specialist environment and planning lawyer and Founder of Guthrie Legal.
She provides modern environmental law support to Australian corporate & government clients.
Gabrielle has 17+ years’ tactical and technical experience, which includes advice in all Australian States and Territories.
For more information please visit www.guthrie-legal.com
Conducting Environmental Due Diligence in Queensland
Before purchasing or renting a property in Queensland, it is important to be aware of the “polluter pays” principle and to undertake due diligence in relation to potential contamination risk.
The “polluter pays” principle is found in all Australian State and Territory laws. Generally, it means that the person who caused pollution or contamination is the person who is legally liable (meaning responsible) for cleaning it up.
In Queensland, contaminated land is managed under the Environmental Protection Act 1994. Liability to clean up contamination under a “clean up notice” issued under section 363H of the Act is principally directed at the polluter. But, it is possible for a clean-up notice to be issued to a site occupier (including owner occupiers and the person apparently in charge of the place). This could occur, for example, if there is a change in condition of pre-existing contamination at a site and where the current occupier is not the original polluter but is nonetheless in occupation during the change in contamination.
As the costs of contamination clean up or management can be high, taking steps to properly investigate contamination risk prior to acquisition or tenancy is important.
Liability To Notify Of Contamination
In addition to potential liability to clean up a site, under section 320A(2) of the Environmental Protection Act 1994, there is a positive duty for owners or occupiers of land to notify the Department of Environment and Science of certain information about contamination and environmental harm.
The duty to notify could be triggered after taking occupation, if information comes to light after purchase or lease. If notification of contamination to the Department is required, then there is a risk that the occupier may then be subject to a clean-up notice and/or for the site to be placed on one of two public registers: the Environmental Management Register (‘EMR’) or the Contaminated Land Register (‘CLR’).
A site recorded on the EMR has been, or is being used for a “notifiable activity” for example, fuel storage, or has been contaminated but doesn’t pose a significant risk to human health or the environment in its current use. A site recorded on the CLR is a site with proven contamination which is causing or may cause serious harm to the environment or public health. A listing on either register has the potential to impact property values.
The Importance of Due Diligence
To avoid being unwittingly caught up in post-acquisition or post-occupation notification requirements or receiving a notice to clean up of a contaminated site, due diligence on whether a site has contamination risk is crucial. Due diligence should consider the risk of contamination from current and historic site uses.
Disclaimer: The information in this article is intended only to provide a general overview on matters of interest. It is not intended to be comprehensive, nor does it constitute environmental consulting or legal advice. You should always seek independent professional advice on specific cases and before acting or relying on any of the content.