Review of the Contaminated Sites Act 2003

The Department of Environmental Regulation (DER) has recently released its Review of the Contaminated Sites Act 2003 (Act) in final form (Review).

The Review was carried out by the DER to assist the Minister in complying with his obligations under s 99 of the Act, which requires that the Minister review the Act as soon as practicable five years after commencement of the Act came into effect on 1 December 2006.

Pursuant to s 99 of the Act, the Minister is to consider and have regard to:

• the effectiveness of the scheme established under the Act in identifying, recording, managing, and remediating contaminates sites; and
• any other matter that appears to the Minister to be relevant to the operation and effectiveness of the Act.

In compiling its Review for the Minister, the DER engaged in stakeholder consultation, by way of publishing a consultation paper, an online survey, and a discussion paper.  The results of the consultation are published in the Review.

The Review makes 5 key recommendations to the Minister.  These include:

1. The Minister make no amendment to the Act regarding the role of the Contaminated Sites Committee (Committee) in determining appeals and its jurisdiction for original decision making under the Act.
2. Publish detailed procedure for determining responsibility for remediation.
3. Review the effectiveness of the detailed procedures for determining responsibility for remediation after two years of operation.
4. Amend the Regulations regarding the facts and circumstances to be taken into account by the Committee when making a decision as to responsibility for remediation; and
5. Amend the regulations to clarify that in regulation 23 (a) “site” refers to both source site and its affected sites.

Recommendations 1, 4 and 5 are discussed further below.

In addition, the Review has resulted in proposed actions by DER to:

• provide clearer guidance to environmental consultants and professionals regarding their role, in addition to owners and occupiers, in ensuring that contamination is reported in a timely manner;
• investigate the feasibility of providing decision-making authorities (such as local government authorities and state government agencies) with electronic access to the database of contaminated sites;
• provide additional guidance on disclosure requirements is required to provide confidence that landowner obligations are clear and that notification is made in accordance with the Act requirements; and
• publish further information regarding the Committee’s decision-making with respect to determining responsibility for remediation would be helpful to stakeholders in understanding the application of the hierarchy of responsibility.

Lavan Legal comment

Recommendation 1

The Committee is a statutory body established for the purposes of, among other things, determining appeals in relation to the classification of a site and decisions as to responsibility for remediation of contamination.  Accordingly, decisions made by the Committee have potentially very significant consequences for a range of persons.  

Notwithstanding this, there is currently no avenue for merit review of a decision of the Committee to an external body or Tribunal, largely because when the Act was drafted, the State Administrative Tribunal (SAT) did not exist.  The only avenue of appeal is to the Supreme Court, and such an appeal may only be made on the basis of an error of law (legality of the decision), rather than a review of the merits of the decision (which seeks to achieve the correct and preferable decision).

Notwithstanding the significant level of dissatisfaction with the current appeals regime from the non-government sector, the Review (and DER) has overlooked the need and necessity for a review/appeal avenue against decisions of the Committee to the SAT.

The Review has concluded that, due to the small number of appeals against Committee decisions to the Supreme Court, it follows that the Committee’s decisions are reliable and there is no need for SAT in the process.  With respect, this inference fails to take into account the limits of the review and the costs of pursuing it in the Supreme Court.  In our view this conclusion is misguided, and demonstrates a lack of understanding of the difference between SAT and the Supreme Court and merit review and judicial review.

Further, the Review cites as one of the main reasons for not providing a SAT review avenue is the time and resources associated with a review in SAT.  This reason is contrary to the objectives, and major benefits of the SAT, as raised by stakeholders, which include;

• Timely and cost effective decision making;
• Improved transparency, including the publishing of reasons for all decisions;
• Additional powers, including the power to subpoena and the extensive use of mediation, and
• The aim to achieve the correct and preferable decision.

Disappointingly, the Review disregards the recommendations of the Parliamentary Standing Committee’s “Inquiry into the jurisdiction and operation of the SAT”, which was tabled to the Legislative Council on 20 May 2009 that the SAT be empowered to review the decisions of the Committee.

Recommendation 4

The Review also recommends amendments to the regulations supporting the Act, which would vary the facts and circumstances to be taken into account by the Committee when making a decision as to responsibility for remediation.

The Review implies that those amendments would address:

• the point in time to which the Committee’s decision on responsibility for remediation relates; and
• the extent to which the Committee may take investigation and remediation already undertaken into consideration in its decision-making.

It would appear that these amendments would provide greater clarification for the Committee and landowners as to the evidentiary requirements associated with a decision as remediation responsibility.  Lavan Legal will provide comment on the proposed amendments to the regulations when they are advertised.

Recommendation 5

The recommendation to amend the regulations to clarify that in regulation 23 (a) “site” refers to both source site and its affected sites could have far reaching consequences for landowners, financiers and developers, particularly in circumstances that they may own, finance or manage sites which are adjacent to, or located within the vicinity of existing known contaminated sites.

The Review does not make it entirely clear what these consequences might be, and Lavan Legal will provide specific comment on the proposed amendment to the regulations in due course.

Summary

The proposed recommendations in the Review, if implemented, will have wide ranging consequences for the development industry (including landowners, tenants, developers and financial institutions) with respect to contaminated land.  It is therefore imperative that you understand the potential impacts that the recommendation outlined in the Review may have on your land and if negatively impacted, make the appropriate representations to the Minister and lodge submissions on the proposed amendments to the regulations, when they are advertised for comment.

If you require any assistance in assessing the potential impact on your property interest(s), or in making contact with the Minister to voice your concerns, please contact a member of the Lavan Legal Planning and Environment Team.