ENVIRONMENT PROTECTION ACT 1997 - SECT 91I Choice of appropriate person

ENVIRONMENT PROTECTION ACT 1997 - SECT 91I

    (1)     For section 91C (1) and section 91D (1), an appropriate person must be chosen from among the following people in the following order:

        (a)     a person who had principal responsibility for the contamination of the land with the substance (whether or not there were other people who had responsibility for the contamination of the land with the substance) or, if that is not practicable, the person referred to in paragraph (b);

        (b)     either—

              (i)     a lessee of the land (whether or not the person had any responsibility for the contamination of the land with the substance) or if that is not practicable, the person mentioned in paragraph (c); or

              (ii)     if the land is land under a land sublease—the sublessee of the land (whether or not the person had any responsibility for the contamination of the land with the substance) or if that is not practicable, the following people in the following order:

    (A)     the sublessor of the land (whether or not the person had any responsibility for the contamination of the land with the substance);

    (B)     the person mentioned in paragraph (c);

Note     A sublessor, under a land sublease, is the lessee under the Crown lease under which the sublease is granted

        (c)     a notional lessee of the land (whether or not the person had any responsibility for the contamination of the land with the substance).

    (2)     If there is more than 1 person in the category of appropriate person specified in subsection (1), the authority may, but is not required to, make more than 1 person in the category the subject of the order.

    (3)     For this section, the choice of a person is to be regarded as not practicable if—

        (a)     the authority cannot, after reasonable inquiry, ascertain the identity or location of the person; or

        (b)     in the opinion of the authority, the person does not have the resources to comply with the order.

    (4)     In this section:

"financial controller" means a receiver, manager or other person who has possession or control of land for the purpose of realising part or all of the value of the land to discharge an obligation secured over the land.

"notional lessee", in relation to land—

        (a)     means a person who has vested rights in relation to the land that—

              (i)     carry an entitlement to have the lease (or land sublease) transferred to the person; or

              (ii)     enable the person to dispose of or otherwise deal with the land;

        so that the person is able to benefit from the value of the lease (or land sublease), or a substantial part of it, by the transfer, disposal or dealing; and

        (b)     includes a mortgagee in possession of the land the subject of the lease (or land sublease); but

        (c)     does not include—

              (i)     a person having security over the lease (or land sublease); or

              (ii)     a person who is a legal personal representative of a person who was the lessee (or for land under a land sublease, the sublessee) of the land immediately before the appointment of the representative took effect or who was a lessee (or sublessee) of the land immediately before the lessee's (or sublessee's) death; or

              (iii)     the public trustee and guardian because of the operation of the Public Trustee and Guardian Act 1985

, section 19; or

              (iv)     a person who would otherwise be a notional lessee if—

    (A)     the person has some security of the lease (or land sublease); and

    (B)     the person, or a financial controller appointed by the person, has entered into a contract to sell the land for the purpose of realising all or part of the value of the land to discharge an obligation so secured.