contaminated land laws in nsw implications of proposed changes nick thomas, partner 22 october 2008
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Contaminated land laws in NSW
Implications of proposed changes
Nick Thomas, partner
22 October 2008
What we will cover today• How does the law deal with contamination?
• legislation• common law• contract
• Implications of proposed CLM Act changes• land management• transactions • development projects
• Proposed CLM Act changes and sustainability
Contamination and the law• Legislation
• contamination management → CLM Act • regime for investigation / remediation • duty to notify EPA• certification and activities of auditors
• pollution control → POEO Act • water pollution • land pollution • waste licensing and offences
Contamination and the law (cont.)
• pollution control → POEO Act (cont.)• clean up orders • duty to report pollution incidents
• environmental assessment → Planning Act, EPBC Act • trade practices (esp. s.53A)
• Law of torts• negligence → duty of care• nuisance → interference with use and enjoyment of land
Contamination and the law (cont.)
• Contract• allocation of risk (indemnities etc)• arrangements for clean up • conditions precedent/subsequent • warranties• ongoing obligations
Proposed changes - land management
• Reporting contamination - constructive awareness • proposed regulations and guidelines for thresholds• broad concept of "ought reasonably to have known"
• person's abilities (experience, qualifications, training) • whether could reasonably have sought relevant advice• "circumstances of the contamination"
→ higher duty on those with more resources or in-house expertise?
Proposed changes - land management (cont.)
• Reporting contamination (cont...)
→ increase in number of sites notified
→ bigger budgets for contamination assessments and advice
→ increase in number of regulated sites
→ bigger remediation budgets
→ more disputes about contamination?
Proposed changes - land transactions
• Broader risk of EPA regulatory action • new threshold - more subjective
→ more uncertainty - harder to allocate risks?
• Broader range of "appropriate persons"• target those "responsible", not just those "principally responsible"
→ more potential for multiple targets
→ more stakeholders interested in risk allocation
Proposed changes - land transactions (cont.)• Preliminary investigation orders
→ again raises the stakes for allocating contamination risk
• More information available
→ makes due diligence more worthwhile!
• Changes to duty to report • "compliance with laws" warranty?
Proposed changes - development projects
• Harder to anticipate EPA regulatory action
→ project planning (and timelines) more difficult?
• integration of investigation and remediation processes
→ lower threshold for remediation powers
→ likely to reduce red tape
Do the changes promote sustainability?
• ESD requires integration of economic and environmental considerations
• Will it be the "polluter" paying?
• Enhanced inter-generational equity (through cleaning up more sites)
• What about intra-generational equity?
• Take care not to lose risk-based approach (NB. precautionary principle)
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