Information on this page is not current law. It details new laws intended to commence on 1 July 2021 under the Environment Protection Act 2017.
Contaminated land can be dangerous to the environment and human health. If you’re managing or controlling land, you have an obligation to manage the contamination risks.
Working out whether you’re in control over land
‘Management or control’ relates to whether a person can exercise power over the land. For example, when a person:
- holds a legal interest in the land, such as an owner, leaseholder or committee of management, or
- has access to the land, or use of the land.
The person, or persons, in management or control of land are ‘duty holders’ under the contaminated land duties. The extent of their duties relates to the level of control they have.
They apply when a person:
- knows contamination is present
- would reasonably suspect the presence of contamination. For example, there’s information about contamination in environmental reports or the history of the site.
What a person knows, or ought reasonably to know, about land and contamination can change over time.
Who has a duty to manage contamination risks
The duty to manage contamination risks can arise:
- where someone knows where contamination is based on available evidence
- there is potential for contamination to be present.
The duty requires duty holders to assess the likelihood of contamination being present. Where there is contamination, duty holders must manage its risks.
The duty holds the person in management or control of the land to account for managing the contamination. It also recognises they will not always be the person who caused or contributed to the contamination. It balances these concerns by:
- requiring duty holders to minimise of the risk of harm from the contamination – not necessarily to clean up the site
- relating obligations to the current use of the land (for example, existing industrial use)
- limiting expectations to what is reasonably practicable to minimise the risks of harm for current use.
EPA may issue a remedial notice requiring people to take steps to comply with the duty. Criminal enforcement may apply if a person fails to comply with the notice.
When to notify EPA about contamination
The duty to notify of certain contamination is a duty of disclosure. You are required to notify under prescribed circumstances. Environmental experts can work out if the circumstances apply, by investigating and measuring the land contamination.
The basis for these prescribed circumstances is when to investigate and act on contamination. They don’t always mean there is significant risk of harm.
Not all contamination will need a detailed investigation by an environmental consultant. EPA will produce guidance to help duty holders on when and how to investigate. However, if you already know of significant contamination from past investigations or reports, you will probably need to notify.
Engaging consultants (publication 1702)
Contamination duties apply to activities and to land
If activities might involve contamination, such as excavating contaminated soil or disturbing underground tanks, the GED may apply. Contamination can present a risk of harm to human health or the environment. So these activities must minimise such risks.
While the GED applies to activities, the contaminated land duties apply to a person who is in management or control of land where there’s contamination. The contaminated land duties apply whether or not an activity is also occurring.
While the GED aims to prevent harm from arising in the first place, the contaminated land duties address risks of harm from contamination which already exists.
Implementation of the laws
Some may know they’re expected to notify EPA about contamination of land they control based off past investigations and reports. EPA expects those duty holders to notify promptly.
However, other people may have low skill, knowledge or experience and would not be ‘reasonably aware’ of contamination. EPA recognises until guidance is available, some duty holders may not understand when to notify. That means for many, EPA will need to make guidance to support notification. As awareness increases, EPA will expect more duty holders to notify.
Victoria Unearthed is an online tool which gives access to more information about potential and existing contaminated land.
Reviewed 25 September 2020