Contaminated land duties address risk of harm from contamination of land and groundwater. They work alongside the general environmental duty (GED). Unmanaged contamination can cause harmful changes in land or groundwater quality. These changes can pose a risk to human health and the environment.
Depending on the contamination status of your land (including groundwater), your duties and obligations may include:
- your GED to manage risks posed by your activities involving contaminated land
- your duty to manage contaminated land
- your duty to notify EPA of contamination in certain circumstances.
The duty to manage and duty to notify apply regardless of whether you’re undertaking an activity, unlike the GED. You can find details on the duties and EPA’s expectations in the Contaminated land policy (publication 1915).
Summary of the contaminated land duties
The contaminated land duties apply to you if land you manage or control is contaminated.
When contamination is present, or you suspect it’s present, you have a duty to manage the risks from that contamination. This is the case even if the contamination happened before you took control of the land.
There are two contaminated land duties:
- the duty to manage contaminated land
- the duty to notify of contamination in certain circumstances.
Working out whether you’re in management or control of land
You’re in ‘management or control’ of land if you can exercise power over that land. For example, if you:
- hold a legal interest in the land, such as owner, leaseholder or committee of management, or
- have access to the land or use of the land.
A person in management or control of land is a ‘duty holder’ under the contaminated land duties. Sometimes more than one person is a duty holder for the same land. For example, an owner and an occupier share management or control of land. The extent of their duties relates to the level of management or control they each have.
If you own or use land, you should consider whether you may have shared duties or responsibilities, and:
- clarify from EPA’s guidelines what your responsibilities might be
- clarify with those you share management or control, what your duty or responsibility might be, and
- if it is unclear what your duties are, or if you identify contaminated land or potentially contaminated land, you should discuss with those you share management or control. You may need to engage an expert for help.
We have case studies to help you understand if you are in management or control of contaminated land.
How the GED works with the contaminated land duties
The GED may apply in relation to contaminated land if you undertake an activity such as:
- excavating contaminated soil
- disturbing underground tanks.
If you undertake such activities, you must minimise risks.
How EPA understands the definition of contaminated land
You may already know of contamination on your land, or be assisting someone who does. To check if land falls within the definition of contaminated land, read Contaminated land: Understanding section 35 of the Environment Protection Act 2017 (publication 1940).
An important step in understanding if land is contaminated is assessing the background levels. You may assess the background levels of waste, a chemical substance, or a prescribed substance.
The background level is the naturally occurring concentration of waste, a chemical substance, or a prescribed substance on or under the surface of the land, or, in the vicinity of the land. This is when the background levels are not specified in the Regulations or an environment reference standard (ERS).
We have written Background levels: Identifying naturally occurring chemical substances (publication 2033) to support duty holders assessing background levels. This guideline has a method and approach for assessing background levels and includes case studies.
Read more about contaminated land
Contaminated Land Policy (publication 1915)
Potentially contaminated land – A guide for business (publication 2010)
Reviewed 12 December 2022