CONTAMINATED LAND MANAGEMENT ACT 1997 - SCHEDULE 2

CONTAMINATED LAND MANAGEMENT ACT 1997 - SCHEDULE 2

SCHEDULE 2 – Savings and transitional provisions

(Section 115)

Part 1 - General

1 Regulations

(1) The regulations may contain provisions of a savings or transitional nature consequent on the enactment of the following Acts--

this Act

Environment Protection Legislation Amendment Act 2002 (but only to the extent that it amends this Act)

Contaminated Land Management Amendment Act 2003

Contaminated Land Management Amendment Act 2008

any other Act that amends this Act

(2) Any such provision may, if the regulations so provide, take effect from the date of assent to the Act concerned or a later date.

(3) To the extent to which any such provision takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as--

(a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or

(b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication.

2 Pre-existing contamination

Nothing in this Act prevents the application of a provision of this Act to contaminated land just because--

(a) the land was contaminated land before the commencement of the provision, or

(b) the risk presented by the contamination was present before that commencement, or

(c) an act or activity referred to in section 6 took place before that commencement or an existing use referred to in that section arose before that commencement.

2A Reference to Board of Tick Control

A reference in this Act to "the use of a cattle dip site on the land under a program implemented in accordance with the recommendations or advice of the Board of Tick Control under Part 2 of the Stock Diseases Act 1923 " is taken to be a reference to "the use of a cattle dip site on the land in relation to a treatment ordered under the Stock Diseases Act 1923 ".

Part 2 - Provisions consequent on enactment of this Act

3 Restoration of premises

(1) Part 5 of the Environmentally Hazardous Chemicals Act 1985 , as in force immediately before its repeal by this Act, continues in force in respect of--

(a) any condition, or undertaking, in force under section 34 of that Act immediately before the repeal, and

(b) any security held under section 34 of that Act immediately before the repeal, and

(c) any direction in force under section 35 of that Act immediately before the repeal, and

(d) any prescribed remedial action commenced under section 36 of that Act before that repeal,

as if the Part had not been repealed.

(2) Any prescribed remedial action commenced under section 36 of that Act before that repeal may be completed, and costs and expenses recovered in respect of it, in accordance with that section as if the section had not been repealed.

(3) Despite subclause (1), land that is premises in respect of which a direction was given under section 35, or prescribed remedial action was commenced under section 36, of the Environmentally Hazardous Chemicals Act 1985 before the repeal of Part 5 of that Act by this Act is, for the purposes only of sections 28 (Maintenance of remediation: notice to owner or occupier) and 29 (Maintenance of remediation: covenant) of this Act, taken to be land the subject of remediation under Part 3 of this Act.

(4) Despite subclause (1), a direction given under section 35 of the Environmentally Hazardous Chemicals Act 1985 before the repeal of Part 5 of that Act by this Act is, for the purposes only of sections 58 (EPA's record of current declarations and orders) and 59 (Local authorities to be informed) of this Act, taken to be--

(a) if the direction relates only to the investigation of the land (for instance, to determine the nature and extent of the contamination of the land, the nature and extent of the harm caused by the contamination or the risk that the contamination will cause such harm) and not to the remediation of the land--an investigation order, or

(b) in any other case--a remediation order.

(5) Despite subclause (1), any agreement to take prescribed remedial action entered into under section 36 (2) (a) of the Environmentally Hazardous Chemicals Act 1985 , or any direction to take such action given under section 36 (2) (b) of that Act, before the repeal of Part 5 of that Act by this Act is, for the purposes only of sections 58 (EPA's record of current declarations and orders) and 59 (Local authorities to be informed) of this Act, taken to be--

(a) if the prescribed remedial action in relation to which the agreement was entered into or the direction was given relates only to the investigation of the land (for instance, to determine the nature and extent of the contamination of the land, the nature and extent of the harm caused by the contamination or the risk that the contamination will cause such harm) and not to the remediation of the land--an investigation order, or

(b) in any other case--a remediation order.

(6) A direction given under section 35 of the Environmentally Hazardous Chemicals Act 1985 before the repeal of Part 5 of that Act by this Act, may be revoked by the EPA at any time by notice in writing that is, where reasonably practicable, served on the person to whom the direction was given.

5 Present guidelines continue in force

The following guidelines made by the EPA are taken to be in force for the purposes of this Act as if they had been made under this Act in accordance with section 105 (1) and (2) (a)-(c)--

(b) Contaminated Sites. Guidelines for the Vertical Mixing of Soil on Former Broad-Acre Agricultural Land , January 1995,

(e) Contaminated Sites. Guidelines for Assessing Banana Plantation Sites , October 1997.

Part 3 - Provisions consequent on enactment of the Environment Protection Legislation Amendment Act 2002

6 Accreditation of site auditors

The accreditation of a site auditor in force immediately before the amendment of section 50 (1) by the Environment Protection Legislation Amendment Act 2002 expires (if not revoked under this Act) on the date on which it would have expired if the amendment had not been made and may be renewed in accordance with that section as so amended.

Part 4 - Provisions consequent on enactment of the Contaminated Land Management Amendment Act 2003

7 Recovery of costs

Section 36, as amended by the Contaminated Land Management Amendment Act 2003 , extends to costs incurred before the amendment of that section by that Act if those costs were incurred on or after 1 September 1998.

8 Existing accreditation as a site auditor and suspension

(1) An accreditation (including any conditions to which the accreditation is subject) in force immediately before the commencement of Schedule 1 [10[#93] to the Contaminated Land Management Amendment Act 2003 (the
"amending Act" ), continues in force for the balance of the term for which it was granted.

(2) An accreditation referred to in subclause (1) is taken to have been validly granted or renewed, and any condition to which the accreditation is subject is taken to have been validly imposed, under Part 4 of this Act as amended by the amending Act.

(3) A suspension in effect immediately before the commencement of Schedule 1 [10[#93] to the amending Act, continues to have effect until further notice by the EPA. The suspension is taken to have effect under Part 4 of this Act as amended by the amending Act and section 56 applies accordingly.

9 Revocation, suspension or refusal to renew accreditation

Section 56, as substituted by the Contaminated Land Management Amendment Act 2003 , extends to acts or omissions occurring before the substitution of that section by that Act.

10 Members of accreditation panel

A member of the accreditation panel holding office immediately before the commencement of section 49 (as substituted by the Contaminated Land Management Amendment Act 2003 ), is taken, on that commencement, to be appointed under section 49 as substituted and this Act applies accordingly.

11 Annual returns and other notifications

Despite the definition of
"return period" in section 53D (6), the return period for the year ending 30 June 2007 is, for the purposes of section 53D, to commence on 1 March 2006 rather than 1 July 2006.

Part 5 - Provisions consequent on enactment of the Contaminated Land Management Amendment Act 2008

12 Definition

In this Part--


"the amending Act" means the Contaminated Land Management Amendment Act 2008 .

13 Orders, declarations and voluntary proposals

(1) Land that is an investigation area or a remediation site immediately before the substitution of Division 2 of Part 3 by the amending Act is, on the substitution of that Division, taken to be significantly contaminated land.

(2) An investigation order or remediation order that is in force immediately before the substitution of Division 2 of Part 3 by the amending Act is, on the substitution of that Division, taken to be a management order that is in force on the same terms as the investigation order or remediation order.

(3) A voluntary investigation proposal or voluntary remediation proposal that has been agreed to by the EPA and that has not been fully carried out immediately before the substitution of Division 2 of Part 3 by the amending Act is, on the substitution of that Division, taken to be an approved voluntary management proposal in force on the same terms as the voluntary investigation proposal or voluntary remediation proposal.

(4) In relation to any investigation area, remediation site, investigation order, remediation order, voluntary investigation proposal or voluntary remediation proposal to which this clause applies the following references (whether in the order or proposal or elsewhere) are, on and from the substitution of Division 2 of Part 3 by the amending Act, to be read as follows--

(a) a reference to an investigation area or a remediation site is taken to be a reference to significantly contaminated land,

(b) a reference to an investigation order or remediation order is taken to be a reference to a management order,

(c) a reference to a voluntary investigation proposal or voluntary remediation proposal that has been agreed to by the EPA is taken to be a reference to an approved voluntary management proposal and a reference to a party to such a voluntary investigation proposal or voluntary remediation proposal is taken to be a reference to an approved party,

(d) a reference to land being contaminated in such a way as to present a significant risk of harm is taken to be a reference to contamination that the EPA considers to be significant enough to warrant regulation under Division 2 of Part 3 of this Act.

(5) Subclause (4) (d) does not apply to a reference in a guideline.

14 Public consultation

For the purposes of section 14 (4), the EPA is taken to have considered submissions under section 11 (2) (e) if, in respect of the land to which the proposed management order is to apply, the EPA has, before the substitution of Division 2 of Part 3 by the amending Act, considered submissions under section 17 (2) or 23 (3).

15 Voluntary management proposals

Section 17 (6) does not apply to a voluntary investigation proposal or voluntary remediation proposal that is taken, because of clause 13, to be an approved voluntary management proposal and section 20 or 27 (as the case may be) as in force immediately before the substitution of Division 2 of Part 3 by the amending Act continues to apply in respect of those proposals.

16 Maintenance of remediation

(1) A notice issued under section 28 and in force immediately before the substitution of that section by the amending Act continues in force and is taken to have been issued under section 28 as substituted.

(2) A reference in section 28 (1) or 29 (1) to land that has been the subject of a management order or an approved voluntary management proposal includes land that was, before the substitution of Division 2 of Part 3 by the amending Act--

(a) the subject of an investigation order or a remediation order, or

(b) the subject of a voluntary investigation proposal or voluntary remediation proposal that has been agreed to by the EPA under section 19 or 26.

(3) A covenant imposed by the EPA under section 29 before the substitution of that section by the amending Act may be released or varied under section 29 (2) as substituted by the amending Act.

(4) Land that is taken to be land the subject of remediation under Part 3 because of the operation of clause 3 (3) is, on the substitution of section 28 by the amending Act, taken to be land the subject of a management order.

17 Cost recovery

Sections 34 and 35 as substituted by the amending Act apply only in respect of an order made under Part 3, or a voluntary management proposal furnished to the EPA, after that substitution and in any other case those sections apply as they were immediately before that substitution.

18 Penalty notices

Section 92A (5A) and (5B), as inserted by the amending Act, extend to a penalty notice served before the commencement of those subsections.

19 Disclosure of information

Section 107 (3), as inserted by the amending Act, extends to information obtained by the EPA before the commencement of that subsection.

20 Records

A reference in clause 3 to section 58 or 59 includes a reference to those sections as substituted by the amending Act.

Part 6 - Provisions consequent on enactment of Protection of the Environment Legislation Amendment Act 2014

21 Definition

In this Part--


"amending Act" means the Protection of the Environment Legislation Amendment Act 2014 .

22 Financial assurances for actions required by management order

Section 14 (1A) and Division 6A of Part 3, as inserted by the amending Act, apply with respect to management orders made on or after the commencement of those provisions.

23 Penalty notices for repeat offenders

Section 92A (6) (d), as inserted by the amending Act, extends to convictions and payments of penalty notices that occurred before its commencement for the purposes of counting the number of offences for which an offender was convicted, or has paid a penalty notice, within a 5-year period referred to in that paragraph.

24 Court orders in connection with offences

(1) Division 2A of Part 10, as inserted by the amending Act, extends to proceedings that were initiated, but not determined, before the commencement of the Division.

(2) Proceedings are not determined for the purposes of subclause (1) even if all that remains to be completed is the sentencing of an offender.

25 Continuing offences

Section 100, as inserted by the amending Act, extends to a direction or other requirement given or made before the commencement of that section, but only if the contravention of the direction or requirement began on or after that commencement.

26 Notices, orders and conditions

Section 108A, as inserted by the amending Act, applies to notices and orders given, made or issued, or conditions imposed, under this Act or the regulations on or after the commencement of that section.

Part 7 - Provisions consequent on enactment of Protection of the Environment Legislation Miscellaneous Amendments Act 2017

27 Definition

In this Part--


"amending Act" means the Protection of the Environment Legislation Miscellaneous Amendments Act 2017 .

28 Existing authorised officers

A person appointed as an authorised officer under Part 9 before the repeal of that Part by the amending Act is taken to be an authorised officer appointed under Chapter 7 (Investigation) of the Protection of the Environment Operations Act 1997 on the commencement of sections 96B and 96C of this Act, as inserted by the amending Act.

29 Investigations--exercise of powers

Chapter 7 (Investigation) of the Protection of the Environment Operations Act 1997 extends to the exercise of powers in connection with an investigation commenced before the commencement of sections 96B and 96C of this Act, as inserted by the amending Act.

Part 8 - Provisions consequent on enactment of Environment Legislation Amendment Act 2022

30 Definition

In this Part--


"amended" , in relation to a provision, means the provision as in force on and from the date this Part commences.

31 Extended powers to give clean-up notices

A reference in amended section 46 to land in relation to which the EPA has been given notice under section 60 extends to land in relation to which the EPA was given notice under section 60 before the date this clause commences.

32 Court orders in connection with offences

Sections 95AA- 95AF and amended 95B extend to proceedings commenced, but not finally determined, before the date this clause commences.

Part 9 - Provisions consequent on enactment of Environment Protection Legislation Amendment (Stronger Regulation and Penalties) Act 2024

33 Definitions

In this part--


"amendment Act" means the Environment Protection Legislation Amendment (Stronger Regulation and Penalties) Act 2024 .


"commencement" means the commencement of the amendment Act, Schedule 1.

34 Evidence of analysts

Sections 72 and 72A, as substituted or inserted by the amendment Act, apply to proceedings commenced but not finally determined before the commencement.

35 Jurisdictional limits for proceedings in Local Court

Section 92, as amended by the amendment Act, applies to proceedings commenced but not finally determined before the commencement.