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TASMANIA
__________
ENVIRONMENTAL MANAGEMENT AND
POLLUTION CONTROL AMENDMENT
(CONTAMINATED SITES) BILL 2007
__________
CONTENTS
1. Short title
2. Commencement
3. Principal Act
4. Section 3 amended (Interpretation)
5. Section 48 amended (Civil enforcement proceedings)
6. Section 55 amended (General criminal defence)
7. Part 5A inserted
PART 5A Contaminated Sites
Division 1 Preliminary
74A. Interpretation of Part 5A
Division 2 Action on becoming aware of contaminated site
74B. Action by owner or occupier on becoming aware of
contaminated site
Division 3 Investigation, remediation and site management
notices
74C. Types of notices
74D. Content of notices generally
74E. Investigation notice
74F. Remediation notice
74G. Site management notice
74H. Copies of notice to be served
74I. Registration of notice
74J. Amendment of notice
[Bill 45]-X
74K. Revocation of notice and issue of completion
certificate
74L. Caveatable interest
74M. Effect of section 40 of Land Titles Act 1980
74N. Costs
74O. Appeals
Division 4 Compliance with notice
74P. Duty to comply with notice
74Q. Duty to notify if contaminated site sold
74R. Entry of person on land to comply with notice
Division 5 Action by Director if failure to comply with
notice or in other circumstances
74S. Action on non-compliance with notice
74T. Action if person to be served cannot be found
74U. Recovery of cost of action under section 74S or 74T
as debt due
74V. Cost of action under section 74S or 74T may be
charge on land
74W. Recovery of costs by certain persons from polluter
74X. Sale or transfer of land if owner cannot be found
Division 6 Miscellaneous
74Y. Responsibility of related body corporate
8. Section 92 amended (Powers of authorized officers and council
officers)
9. Section 102 amended (Regulations)
2
ENVIRONMENTAL MANAGEMENT AND
POLLUTION CONTROL AMENDMENT
(CONTAMINATED SITES) BILL 2007
(Brought in by the Minister for Tourism, Arts and the
Environment, the Honourable Paula Catherine Wriedt)
A BILL FOR
An Act to amend the Environmental Management and
Pollution Control Act 1994
Be it enacted by His Excellency the Governor of Tasmania, by
and with the advice and consent of the Legislative Council and
House of Assembly, in Parliament assembled, as follows:
1. Short title
This Act may be cited as the Environmental
Management and Pollution Control Amendment
(Contaminated Sites) Act 2007.
2. Commencement
This Act commences on the day on which this
Act receives the Royal Assent.
[Bill 45] 3
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3. Principal Act
In this Act, the Environmental Management and
Pollution Control Act 1994* is referred to as the
Principal Act.
4. Section 3 amended (Interpretation)
Section 3(1) of the Principal Act is amended as
follows:
(a) by inserting the following definition after
the definition of "condition":
"contaminated site" has the meaning
given by section 74A;
(b) by inserting the following definition after
the definition of "general manager":
"investigation notice" has the
meaning given by section 74A;
(c) by inserting the following definition after
the definition of "related body
corporate":
"remediation notice" has the
meaning given by section 74A;
(d) by inserting the following definition after
the definition of "sell":
*No. 44 of 1994
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"site management notice" has the
meaning given by section 74A;
5. Section 48 amended (Civil enforcement
proceedings)
Section 48(5)(d) of the Principal Act is amended
by omitting "programme or environment
protection notice" and substituting "programme,
environment protection notice, investigation
notice, remediation notice or site management
notice".
6. Section 55 amended (General criminal defence)
Section 55(4)(b) of the Principal Act is amended
by inserting "notice, investigation notice,
remediation notice or site management" after
"protection".
7. Part 5A inserted
After section 74 of the Principal Act, the
following Part is inserted:
PART 5A CONTAMINATED SITES
Division 1 Preliminary
74A. Interpretation of Part 5A
(1) In this Part
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"allow", in relation to the escape,
discharge, emission or release of
a pollutant, includes the failure of
a person with the authority to
prevent the escape, discharge,
emission or release to prevent it;
"area of land" includes any water in,
on or under that area of land;
"background concentration", in
relation to a pollutant, means the
naturally occurring, ambient
concentration of that pollutant;
"contaminated site" has the meaning
given by subsections (2), (3) and
(4);
"investigation notice" means an
investigation notice, as amended
from time to time, issued under
section 74C for the purpose
specified in section 74E(1);
"notice" means an investigation
notice, a remediation notice or a
site management notice;
"owner", in relation to an area of land,
includes a person who has taken
possession of the area of land in
the exercise of a right under a
mortgage, charge or other
encumbrance and has the power
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to sell or otherwise dispose of the
area of land;
"remediation notice" means a
remediation notice, as amended
from time to time, issued under
section 74C for the purpose
specified in section 74F(1);
"site management notice" means a
site management notice, as
amended from time to time,
issued under section 74C for the
purpose specified in
section 74G(1).
(2) An area of land is a contaminated site if
(a) there is in, on or under that area
of land a pollutant in a
concentration that
(i) is above the background
concentration; and
(ii) is causing or is likely to
be causing serious or
material environmental
harm or environmental
nuisance, or is likely to
cause serious or material
environmental harm or
environmental nuisance in
the future if not
appropriately managed; or
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(b) a site management notice is
registered on the land under
section 74I and shown on the
relevant folio in the register of
title of land kept under the Land
Titles Act 1980.
(3) Despite subsection (2), an area of land is
not a contaminated site if
(a) the pollutant present in the area of
land in a concentration above the
background concentration as
referred to in that subsection is a
prescribed pollutant; or
(b) the pollutant present in the area of
land in a concentration above the
background concentration as
referred to in that subsection is
present in or because of
prescribed circumstances.
(4) A contaminated site includes any water
in, on or under the contaminated site.
Division 2 Action on becoming aware of contaminated
site
74B. Action by owner or occupier on becoming
aware of contaminated site
(1) If the owner or occupier of any area of
land knows, reasonably believes or
should in the circumstances reasonably
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believe that the area of land is or is likely
to be a contaminated site, the owner or
occupier
(a) must not commence or continue
any activity that may directly or
indirectly further cause or
continue the exposure, escape,
discharge, emission or release of
the pollutant that the owner or
occupier knows, reasonably
believes or should reasonably
believe has made the area of land
a contaminated site; and
(b) must notify the Director of the
details, if known, of the pollutant
concerned, the circumstances in
which the pollutant escaped or
was discharged, emitted or
released and any action that has
been or is being taken to remedy
the pollution
(i) within 24 hours after the
owner or occupier
becomes aware, first
reasonably believes or
should first reasonably
believe that the area of
land is likely to be a
contaminated site, if he or
she became aware, first
reasonably believed or
should first reasonably
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have believed that the
area of land is, or is likely
to be, a contaminated site
after the commencement
of this section; or
(ii) within 6 months after the
commencement of this
section if the owner or
occupier, at the time this
section commenced, was
aware, reasonably
believed or should
reasonably have believed
that the area of land was,
or was likely to be, a
contaminated site.
Penalty: In the case of
(a) a body corporate, a fine
not exceeding 1 200
penalty units; or
(b) a natural person, a fine
not exceeding 600 penalty
units.
(2) An owner or occupier is not required to
give notice under subsection (1)(b) if the
person has reasonable grounds for
believing that the fact that the area of
land is likely to be a contaminated site
has already come to the notice of the
Director.
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(3) An owner or occupier of an area of land
is required to notify the Director under
subsection (1)(b) despite the fact that to
do so might incriminate him or her or
make him or her liable to a penalty.
Division 3 Investigation, remediation and site
management notices
74C. Types of notices
The Director may issue one or more of
the following notices in accordance with
this Division:
(a) an investigation notice;
(b) a remediation notice;
(c) a site management notice.
74D. Content of notices generally
(1) A notice must specify
(a) the area of land to which it
applies; and
(b) the name and address of every
person to be served with the
notice; and
(c) either
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(i) the works required to be
carried out by each person
served with the notice; or
(ii) the works required to be
carried out and the
proportion of those works
for which each person
served with the notice is
responsible; and
(d) the time within which the works
referred to in paragraph (c) must
be completed; and
(e) any other action each person
served with the notice must take,
must not take or must cease; and
(f) the time within which a person
must take, must not take or must
cease any action referred to in
paragraph (e); and
(g) the grounds on which the
Director reasonably believes that
the area of land is or may be
contaminated; and
(h) that, within 14 days after
receiving the notice, a person
served with the notice may appeal
to the Appeal Tribunal against the
notice or any requirement of the
notice.
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(2) When determining the work to be carried
out by each person served with a notice
or the proportion of the works to be
carried out by each such person, the
Director may take into account
(a) the period during which each of
those persons occupied or was
responsible for the area of land
which is the contaminated site;
and
(b) the use to which each of those
persons put the area of land; and
(c) the responsibility of each of those
persons for any known or likely
incident or circumstance which,
in the opinion of the Director,
could have caused or contributed
to the presence of the pollutant in,
on or under that area of land; and
(d) any other matter the Director
considers relevant.
(3) A notice may
(a) specify that the notice binds any
person who becomes the owner
or occupier of the area of land
after the notice has been issued;
and
(b) contain any other matter the
Director considers appropriate.
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74E. Investigation notice
(1) If the Director reasonably believes that
an area of land is or may be a
contaminated site, he or she may issue an
investigation notice for the purpose of
determining one or more of the
following:
(a) whether the area of land is a
contaminated site;
(b) the type of pollutant concerned;
(c) the extent of the pollution caused
by the pollutant;
(d) the possibility of the pollutant
escaping from the area of land
and affecting another area of land
or a watercourse or body of
water;
(e) the extent of environmental harm
caused, being caused or that may
be caused by the pollution;
(f) whether the pollutant is being
appropriately managed.
(2) The Director may serve an investigation
notice in respect of an area of land on
any person the Director knows or
reasonably believes is, or is likely to be,
wholly or partly responsible for causing
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or possibly causing that area of land to be
a contaminated site.
(3) For the purposes of subsection (2) and
without limiting that subsection, an
owner, occupier or person in charge, or
former owner, occupier or person in
charge, of an area of land (the "pollutant
source land") may be taken to be
responsible for causing or possibly
causing the pollutant source land, or
another area of land, in respect of which
the investigation notice is issued to be a
contaminated site if he or she, while such
an owner, occupier or person in charge,
in the opinion of the Director
(a) knew, or suspected or reasonably
should have suspected, that there
was or possibly was in, on or
under the pollutant source land a
pollutant in a concentration
greater than the background
concentration; and
(b) allowed or is likely to have
allowed, or possibly allowed or
possibly is likely to have allowed,
the pollutant to escape or be
discharged, emitted or released
into, on or under the pollutant
source land or that other area of
land.
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(4) The Director may serve an investigation
notice in respect of an area of land on the
owner of the area of land who is not or is
not likely to be responsible for causing or
possibly causing that area of land to be a
contaminated site if
(a) the owner became the owner of
the area of land after the
commencement of this section;
and
(b) the Director is of the opinion that,
at the time the owner became the
owner of the area of land, the
owner knew, suspected or should
have reasonably suspected that
the area of land was or was likely
to be a contaminated site; and
(c) either
(i) the Director has been
unable to identify, find or
serve with the
investigation notice under
subsection (2), after
taking all reasonable steps
to do so, any person who
the Director reasonably
believes is, or is likely to
be, wholly or partly
responsible for causing or
possibly causing that area
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of land to be a
contaminated site; or
(ii) each person served with a
notice under
subsection (2) is bankrupt
or insolvent; or
(iii) each person served with a
notice under
subsection (2) has
appealed in relation to the
notice and the appeal has
been upheld.
(5) The Director may serve an investigation
notice in respect of an area of land on a
person not referred to in subsection (2) or
(4) if the Director has been provided with
written documentation showing to the
satisfaction of the Director that the
person has accepted responsibility for the
investigation of the pollution of the area
of land, either specifically or as part of a
more general acceptance of responsibility
in relation to the pollution of the area of
land.
(6) Without limiting the works or actions
that an investigation notice may require a
person on whom it is served to do or
take, an investigation notice may require
a person to do or take one or more of the
following works or actions:
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(a) testing, sampling and analysis of
land, water and air;
(b) the installation of groundwater
bores;
(c) data analysis;
(d) the making of progress reports to
the Director;
(e) the conduct of public meetings
for the purpose of informing the
public on the progress made in
investigating the area of land to
which the investigation notice
relates or for any other purpose
the Director considers
appropriate.
74F. Remediation notice
(1) The Director may issue a remediation
notice in respect of an area of land that is
a contaminated site for the purpose of
requiring the taking of action to ensure
that persons are protected from harm, and
the environment is protected from harm
or further harm, that is or is likely to be
caused by the relevant pollutant in, on or
under that area of land when that area of
land is used in accordance with its
existing land use or a proposed land use.
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(2) The Director may serve a remediation
notice in respect of an area of land on
any person the Director reasonably
believes is, or is likely to be, wholly or
partly responsible for causing that area of
land to be a contaminated site.
(3) For the purposes of subsection (2) and
without limiting that subsection, an
owner, occupier or person in charge, or
former owner, occupier or person in
charge, of an area of land (the "pollutant
source land") may be taken to be
responsible for causing the pollutant
source land, or another area of land, in
respect of which the remediation notice
is issued to be a contaminated site if he
or she, while such an owner, occupier or
person in charge, in the opinion of the
Director
(a) knew, suspected or reasonably
should have suspected that there
was in, on or under the pollutant
source land a pollutant in a
concentration greater than the
background concentration; and
(b) allowed or is likely to have
allowed the pollutant to escape or
be discharged, emitted or released
into, on or under the pollutant
source land or that other area of
land.
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(4) The Director may serve a remediation
notice in respect of an area of land on the
owner of the area of land who is not or is
not likely to be responsible for causing
that area of land to be a contaminated site
if
(a) the owner became the owner of
the area of land after the
commencement of this section;
and
(b) the Director is of the opinion that,
at the time that owner became the
owner of the area of land, that
owner knew, suspected or should
have reasonably suspected that
the area of land was or was likely
to be a contaminated site; and
(c) either
(i) the Director has been
unable to identify, find or
serve with the notice
under subsection (2), after
taking all reasonable steps
to do so, any person who
the Director reasonably
believes is, or is likely to
be, wholly or partly
responsible for causing
that area of land to be a
contaminated site; or
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(ii) each person served with a
notice under
subsection (2) is bankrupt
or insolvent; or
(iii) each person served with a
notice under
subsection (2) has
appealed in relation to the
notice and the appeal has
been upheld.
(5) The Director may serve a remediation
notice in respect of an area of land on a
person not referred to in subsection (2) or
(4) if the Director has been provided with
written documentation showing to the
satisfaction of the Director that that
person has accepted responsibility for the
remediation of the area of land, either
specifically or as part of a more general
acceptance of responsibility in relation to
the pollution of the area of land.
(6) Without limiting the works or actions
that a remediation notice may require a
person on whom it is served to do or
take, a remediation notice may require a
person to do or take one or more of the
following works or actions:
(a) for the purpose of determining
what remediation options are
suitable, any of the actions that
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may be required by an
investigation notice;
(b) the erection of a fence, wall, bund
or other barrier;
(c) the removal, destruction,
reduction, containment or
dispersal of the pollutant;
(d) the removal or treatment of any
soil, sand, rock, water or any
other solid or liquid material;
(e) the vacation by the occupier of
the whole or any part of the
contaminated site;
(f) the erection or display of a sign
that does one or more of the
following:
(i) prohibits persons from
entering, or regulates the
entry of persons to, the
contaminated site;
(ii) prohibits or regulates the
use of the contaminated
site as specified in the
sign;
(iii) gives directions relating
to the use of the
contaminated site or any
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other matter the Director
considers appropriate;
(g) the making of progress reports to
the Director;
(h) the conduct of public meetings
for the purpose of informing the
public on the progress made in
remediation of the contaminated
site or for any other purpose the
Director considers appropriate.
74G. Site management notice
(1) The Director may issue a site
management notice in respect of an area
of land that is a contaminated site for the
purpose of ensuring the safe management
of the contaminated site and the pollutant
that is polluting it.
(2) The Director may serve a site
management notice in respect of an area
of land on any one or more of the
following persons:
(a) any person the Director
reasonably believes is, or is likely
to be, wholly or partly
responsible for causing the area
of land to be a contaminated site;
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(b) the owner, occupier or person in
charge of the area of land;
(c) any other person if written
documentation has been provided
to the Director showing to the
satisfaction of the Director that
the person has accepted
responsibility for the
management of the pollution of
the area of land, either
specifically or as part of a more
general acceptance of
responsibility in relation to the
pollution of the area of land.
(3) For the purposes of subsection (2)(a) and
without limiting that subsection, an
owner, occupier or person in charge, or
former owner, occupier or person in
charge, of an area of land (the "pollutant
source land") may be taken to be
responsible for causing the pollutant
source land, or another area of land, in
respect of which the site management
notice is issued to be a contaminated site
if he or she, while such an owner,
occupier or person in charge, in the
opinion of the Director
(a) knew, suspected or reasonably
should have suspected that there
was in, on or under the pollutant
source land a pollutant in a
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concentration greater than the
background concentration; and
(b) allowed, is likely to have allowed
or is likely to allow the pollutant
to escape or be discharged,
emitted or released into, on or
under the pollutant source land or
that other area of land.
(4) Without limiting the works or actions
that a site management notice may
require a person on whom it is served to
do or take, a site management notice may
require a person to do or take one or
more of the following works or actions:
(a) the erection of a fence, wall, bund
or other barrier;
(b) testing and monitoring for the
purpose of detecting any changes
in the nature and extent of any
risk of harm to persons or
environmental harm that is or
may be caused by the relevant
pollutant in, on or under the
contaminated site when that site
is used in accordance with its
existing land use or a proposed
land use;
(c) any action the Director considers
necessary to prevent or reduce the
transport or escape from the
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contaminated site of the pollutant
concerned when that area is used
in accordance with its existing
land use or a proposed land use;
(d) any action the Director considers
necessary to prevent or reduce the
risk of harm to persons or
environmental harm that is or
may be caused by the relevant
pollutant in, on or under the
contaminated site when that site
is used in accordance with its
existing land use or a proposed
land use;
(e) the vacation by the occupier of
the whole or any part of the
contaminated site;
(f) the erection or display of a sign
that does one or more of the
following:
(i) prohibits persons from
entering, or regulates the
entry of persons to, the
contaminated site;
(ii) prohibits or regulates the
use of the contaminated
site as specified in the
sign;
(iii) gives directions relating
to the use of the
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contaminated site or any
other matter the Director
considers appropriate;
(g) the making of progress reports to
the Director;
(h) the conduct of public meetings
for the purpose of informing the
public on the management of the
contaminated site or for any other
purpose the Director considers
appropriate.
74H. Copies of notice to be served
As soon as practicable after a notice has
been served in respect of an area of land
that is a contaminated site, the Director is
to cause a copy of the notice to be served
on each of the following persons:
(a) an owner or occupier of the area
of land who has not been served
with the notice;
(b) any other person who has an
interest in the area of land that is
registered or recorded on the
relevant folio of the register kept
under the Land Titles Act 1980 in
respect of that land;
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(c) the council of the municipal area
in which that land is situated.
74I. Registration of notice
(1) In this section, unless the contrary
intention appears
"register" means the register kept
under the Land Titles Act 1980.
(2) As soon as practicable after a notice has
been served on a person in respect of an
area of land, the Director is to lodge a
copy of the notice, together with the
particulars of title of the land, with the
Recorder of Titles.
(3) If the land to which a notice relates is not
under the Land Titles Act 1980, the
Recorder of Titles, as soon as practicable
after the copy of the notice and
particulars are lodged with him or her is
to
(a) register the copy of the notice in
the Registry of Deeds; and
(b) bring the land under that Act as if
an application had been made in
relation to that land under section
11 of that Act.
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(4) For the purposes of subsection (3), the
Recorder of Titles is not bound to
investigate the title of any land.
(5) On the lodgment under subsection (2) of
a copy of a notice and particulars in
relation to land that is under the Land
Titles Act 1980, the Recorder of Titles is
to register the notice against the relevant
folio of the register as if it were a
dealing, within the meaning of that Act,
lodged in accordance with that Act.
(6) While a notice registered by the Recorder
of Titles remains so registered against the
relevant folio of the register, the notice
(a) remains in force despite any
subsequent disposition of the land
to which it relates or any other
dealing in that land; and
(b) continues to bind the person on
whom it was served; and
(c) after a disposition of the land to
which it relates, also binds any
person who subsequently
becomes the owner or occupier of
that land if the notice specifies
that it binds any person who
becomes the owner or occupier of
that land after its issue; and
(d) operates as the basis for a charge
on the land, as provided by
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section 74V, securing payment to
the Director of reasonable costs
and expenses incurred in doing
work or taking action if a person
served with the notice fails to
comply with it.
(7) If a copy of a notice is lodged under this
section for registration under the Land
Titles Act 1980 or in the Registry of
Deeds by the Recorder of Titles, the
Recorder is entitled to assume that all
necessary pre-requisites and procedures
in respect of the notice have been
complied with.
74J. Amendment of notice
(1) The Director, at any time, may amend a
notice by issuing an amendment to that
notice.
(2) A person is not bound by an amendment
to a notice until that person has been
served with a copy of the amendment.
(3) As soon as practicable after issuing an
amendment to a notice, the Director is to
lodge the amendment with the Recorder
of Titles.
(4) On the lodgment under subsection (3) of
an amendment to a notice, the Recorder
of Titles is to register the amendment
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against the relevant folio of the register
kept under the Land Titles Act 1980.
74K. Revocation of notice and issue of completion
certificate
(1) The Director, at any time, may revoke a
notice by issuing a further notice
revoking it.
(2) The Director may issue a completion
certificate in respect of a notice if he or
she is satisfied that a notice has been
complied with in full by the persons
bound by it.
(3) As soon as practicable after issuing a
revocation of a notice or a completion
certificate in respect of a notice, the
Director is to serve a copy of the
revocation or completion certificate on
(a) all persons who, immediately
before the issue of the revocation
or the completion certificate, are
bound by the notice; and
(b) the owner and occupier of the
area of land to which the notice
relates and any other person who
has an interest in the land that is
registered or recorded on the
relevant folio of the register kept
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under the Land Titles Act 1980;
and
(c) the council of the municipal area
in which the area of land is
situated.
(4) As soon as practicable after issuing a
revocation of a notice or a completion
certificate in respect of a notice, the
Director is to lodge it with the Recorder
of Titles.
(5) On receiving a revocation of a notice or a
completion certificate in respect of a
notice, the Recorder of Titles is to cancel
the registration of the notice in such
manner as the Recorder considers
appropriate.
74L. Caveatable interest
If the Director has determined, in
writing, that a notice in relation to an
area of land is to be issued or has issued
such a notice, the Director is taken to
have a caveatable interest in the land.
74M. Effect of section 40 of Land Titles Act 1980
Nothing in section 40 of the Land Titles
Act 1980 affects the validity of a notice
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s. 7
or prejudices or affects the operation of a
notice.
74N. Costs
(1) The Director may require a person on
whom a notice has been served to pay the
whole or a part of the reasonable costs
and expenses incurred by the Director in
relation to
(a) the issue and service of the notice
and any amendment to the notice;
and
(b) the issue and service of copies of
the notice, and any amendment to
the notice, required under this
Act; and
(c) the lodging with the Recorder of
Titles of the notice and any
amendment to the notice; and
(d) the inspection of the
contaminated site and any other
action taken in respect of
monitoring the compliance by the
person with the notice; and
(e) the review of any reports and the
monitoring of data required to
ensure compliance with the
notice.
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(2) A requirement must be in writing and
must be served on the person to whom it
relates.
(3) If the costs and expenses referred to in
subsection (1) are not paid or fully paid
by the person within the period specified
in the requirement, the person is liable to
pay interest charged at the prescribed rate
on the amount unpaid.
(4) The Director may recover, as a debt due,
the costs and expenses referred to in
subsection (1), and any interest payable
under subsection (3), in a court of
competent jurisdiction.
74O. Appeals
(1) A person on whom a notice has been
served may appeal to the Appeal
Tribunal in relation to the notice.
(2) A person who institutes proceedings for
an appeal must comply with the notice
unless the Director agrees, in writing,
that no work need be done and no action
need be taken by the appellant until the
proceedings have been determined.
(3) If an appeal is upheld and the appellant
has done work or taken action in
accordance with the notice, the appellant
is entitled to be compensated by the State
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for any loss or damage incurred in doing
that work or taking that action.
(4) The amount of compensation payable is
the amount agreed between the Director
and the appellant.
(5) If the Director and the appellant cannot
agree on the amount of compensation
payable, that amount is to be determined
as a disputed claim for compensation
under the Land Acquisition Act 1993.
Division 4 Compliance with notice
74P. Duty to comply with notice
A person served with a notice must
comply with it.
Penalty: In the case of
(a) a body corporate, a fine
not exceeding 1 000
penalty units; or
(b) an individual, a fine not
exceeding 500 penalty
units.
74Q. Duty to notify if contaminated site sold
If the owner of an area of land has been
served with a notice, or provided with a
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copy of a notice, in relation to that area
of land, the owner must notify the
Director, in writing, of any sale or other
disposal of, or any agreement to sell or
otherwise dispose of, that area of land as
soon as practicable after making that
sale, disposal or agreement.
Penalty: In the case of
(a) a body corporate, a fine
not exceeding 20 penalty
units; or
(b) an individual, a fine not
exceeding 10 penalty
units.
74R. Entry of person on land to comply with
notice
(1) A person who is required by a notice to
do any work or take any action in, on or
under land may enter and remain on the
land with necessary vehicles and
equipment if
(a) it is necessary to enter on that
land to do that work or take that
action; and
(b) subject to subsection (3), the
person has given both the owner
and the occupier, not less than 3
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days before the person enters on
that land, written notification of
(i) the intention to enter and
remain on that land; and
(ii) the reason the person
needs to enter and remain
on the land; and
(iii) the details of the vehicles
and equipment that the
person will bring onto that
land; and
(iv) the approximate period of
time that the person will
need to remain on that
land.
(2) A person who has the power to enter and
remain on land under subsection (1) may
enter on and cross other land with the
vehicles and equipment referred to in that
subsection if
(a) it is necessary to do so to gain
entry onto that land; and
(b) subject to subsection (3), the
person has given both the owner
and the occupier of the other
land, not less than 3 days before
the person first enters on the other
land, written notification of
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(i) the intention to enter on
and cross the other land;
and
(ii) the reason the person
needs to enter on and
cross the other land; and
(iii) the details of the vehicles
and equipment that the
person will bring onto the
other land; and
(iv) the approximate times and
days when the person will
need to enter on and cross
the other land.
(3) If the notice requires the person on whom
it is served to do any work or take any
action in, on or under land as a matter of
urgency, the person may exercise the
powers under subsections (1) and (2)
immediately after giving to the occupier
of the land written notifications which,
respectively, include the information
referred to in those subsections.
(4) The regulations may
(a) grant the person exercising
powers under this section further
powers for the purpose of
complying with the notice; and
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(b) restrict the exercise of powers
under this section.
(5) A person who exercises powers
conferred by or under this section is to do
so in a manner that minimises
interference with the enjoyment of land
by its owner and occupier.
(6) The powers conferred on a person by or
under this section may be exercised by
agents, contractors and employees
authorised by the person to act on his or
her behalf.
(7) A person who exercises a power
conferred by or under this section is
liable to
(a) make good any damage caused
by the exercise of that power as
soon as practicable; or
(b) if the owner or occupier agrees,
pay reasonable compensation for
that damage.
(8) If a dispute arises as to the payment or
amount of compensation payable under
this section, it is to be determined in the
same manner as a disputed claim for
compensation under the Land Acquisition
Act 1993.
(9) If an owner or occupier of land has been
given written notification under
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subsection (1) or (2), the owner or
occupier must allow the person who gave
the notification to exercise the powers
conferred by or under this section.
Penalty: In the case of
(a) a body corporate, a fine
not exceeding 1 000
penalty units; or
(b) an individual, a fine not
exceeding 500 penalty
units.
Division 5 Action by Director if failure to comply with
notice or in other circumstances
74S. Action on non-compliance with notice
(1) The Director, by his or her agent, may do
any work or take any action required by a
notice if a person served with the notice
fails to do that work or take that action in
compliance with the notice
(a) within the period specified in the
notice or a longer period allowed
by the Director; or
(b) if no period is specified in the
notice, within a period the
Director considers reasonable.
(2) For the purposes of subsection (1),
section 74R applies to the agent of the
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Director as if the agent were a person
served with a notice.
74T. Action if person to be served cannot be
found
If the Director, after reasonable enquiry,
cannot determine
(a) the whereabouts of the person on
whom the notice is to be served;
or
(b) on whom to serve a notice
the Director, by his or her agent, may do
any work or take any action that could be
required by the notice.
74U. Recovery of cost of action under section 74S
or 74T as debt due
(1) In this section
"relevant person", in relation to an
area of land in respect of which a
notice has been issued, means
(a) if the Director has taken
action in respect of that
area of land under
section 74S, a person who
has been served with that
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notice under section 74E,
74F or 74G; or
(b) if the Director has taken
action in respect of that
area of land under
section 74T, a person who
could have been served
with that notice under
section 74E, 74F or 74G
had the Director been able
to determine, before
taking that action, the
whereabouts of the person
or the person on whom
that notice could have
been served;
"specified" means specified in a
requirement served under
subsection (4).
(2) If the Director does any work or takes
any action under section 74S or 74T in
relation to an area of land in respect of
which a notice has been issued, the
reasonable costs of doing that work or
taking that action may be recovered by
the Director as a debt due in a court of
competent jurisdiction
(a) from the relevant person; or
(b) if there is more than one relevant
person, from each relevant person
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in the same proportion as the
proportion of the responsibility
each relevant person bears for the
pollutant's presence in, on or
under that area of land and taking
into account any costs each
relevant person has incurred in
complying with the notice.
(3) In determining for the purposes of
subsection (2)(b) the proportion of the
responsibility each relevant person bears
for the pollutant's presence in, on or
under an area of land
(a) the responsibility for that
pollutant's presence borne by any
person who is not a relevant
person is to be disregarded and
the relevant persons, together, are
to be taken to be wholly
responsible for the pollutant's
presence; and
(b) the following factors may be
taken into account:
(i) the period during which
each relevant person
occupied or was
responsible for the area of
land which is the
contaminated site;
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(ii) the use to which each
relevant person put the
area of land;
(iii) the responsibility of each
relevant person for any
known or likely incident
or circumstance which
caused or contributed, or
could reasonably be
believed to have caused or
contributed, to the
presence of the pollutant
in, on or under that area
of land;
(iv) any other matter
considered relevant.
(4) If the whole or a proportion of the
reasonable costs incurred by the Director
are recoverable from a relevant person
under this section, the Director may
require the relevant person, in writing
served on the relevant person, to pay that
amount to the Director within the
specified period of not less than 28 days
after service of the requirement.
(5) If a relevant person on whom a
requirement has been served fails to pay
the whole of the specified amount within
the specified period, the relevant person
is liable to pay interest charged at the
prescribed rate on the amount unpaid.
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74V. Cost of action under section 74S or 74T may
be charge on land
(1) If
(a) the Director does any work or
takes any action under
section 74S or 74T in respect of
an area of land; and
(b) the Director has been unable to
recover the reasonable costs of
doing that work or taking that
action, or any part of those
reasonable costs
(i) because of the failure of a
relevant person, within
the meaning of
section 74U, to pay the
proportion of those
reasonable costs as
ordered by a court under
that section; or
(ii) because the Director was
unable to determine on
whom to serve a notice or
the whereabouts of a
person on whom a notice
was to be served
the Director may determine that the
reasonable costs of doing that work or
taking that action together with any
interest owing under section 74U(5)
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should be a charge on any land owned by
the owner of that area of land.
(2) As soon as practicable after making a
determination under subsection (1), the
Director is to lodge a copy of the
determination, together with the
particulars of the titles of all the land to
be affected by the charge, with the
Recorder of Titles.
(3) If any land which will be affected by the
charge is not under the Land Titles Act
1980, the Recorder of Titles, as soon as
practicable after the determination and
particulars of the land are lodged with
him or her is to
(a) register the determination in the
Registry of Deeds; and
(b) bring the land under that Act as if
an application had been made in
relation to that land under section
11 of that Act.
(4) For the purposes of subsection (3), the
Recorder of Titles is not bound to
investigate the title of any land.
(5) On the lodgment under subsection (2) of
the determination of the Director and
particulars of title, the Recorder of Titles
is to register the determination against
the relevant folio of the register kept
under the Land Titles Act 1980 as if it
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were a dealing, within the meaning of
that Act, lodged in accordance with that
Act.
(6) On the registration, under the Land Titles
Act 1980 by reason of subsection (5), of
the determination on the land in respect
of which the Director did any work or
took any action under section 74S or
74T, the amount of the reasonable costs
of the Director in doing that work or
taking that action, as specified in the
determination, together with any interest
owing under section 74U(5) are a charge
on that or any other land owned by that
owner and that charge
(a) ranks equally with
(i) a debt referred to in
section 119 of the Local
Government Act 1993;
and
(ii) any other debt to a State
Service Agency that is a
charge on the land; and
(b) ranks in priority to any other
charge, mortgage, lien or
encumbrance.
(7) Subsection (1) does not apply if the
Director was not entitled to serve a notice
on the owner of the land in respect of
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which work was done or action was
taken under section 74S or 74T.
74W. Recovery of costs by certain persons from
polluter
(1) In this section
"polluter", in relation to an area of
land in respect of which a notice
has been issued, means a person
on whom the Director has served,
or is or was entitled to serve, a
notice in respect of that area of
land under section 74E(2) or (5),
section 74F(2) or (5) or
section 74G(2)(a) or (c);
"prescribed person" means
(a) a person who has incurred
costs in complying with a
notice; or
(b) a person from whom the
Director has recovered
costs under section 74U in
respect of an area of land;
"recoverable sum", in relation to a
prescribed person, means
(a) the reasonable costs
incurred by the prescribed
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person in complying with
a notice; or
(b) the costs recovered by the
Director under
section 74U from the
prescribed person together
with the reasonable costs
incurred by the prescribed
person in paying to the
Director the costs so
recovered.
(2) A prescribed person may recover as a
debt from a polluter that proportion of
the recoverable sum that is the same as
the proportion of the responsibility the
polluter bears for the area of land in
respect of which the relevant notice was
issued being, or possibly being, a
contaminated site.
(3) Subsection (2) does not apply to a
prescribed person who has accepted
responsibility for the management of the
pollution of the area of land (including
responsibility for the costs of that
management), either specifically or as
part of a more general acceptance of
responsibility in relation to the pollution
of the area of land.
(4) If
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(a) the prescribed person provides
the polluter with a letter
demanding the payment of that
proportion of the recoverable sum
that may be recovered from the
polluter under subsection (2); and
(b) that proportion of the recoverable
sum is not paid or fully paid by
the polluter within the period
specified in the letter or a longer
period agreed between the
prescribed person and the
polluter
the polluter is liable to pay interest
charged at the prescribed rate on the
amount unpaid.
(5) For the purposes of this section, section 6
is of no effect.
74X. Sale or transfer of land if owner cannot be
found
(1) In this section
"land" includes a part of land.
(2) If the Director is entitled to serve a notice
on the owner of land, has been unable to
find and so serve that notice on the
owner and, under section 74T, has done
any work or taken any action that could
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have been required by the notice, the
Director may
(a) sell the land in respect of which
that work or action was done or
taken as if the Director were the
owner of the land
(i) by public auction; or
(ii) if the proceeds of the sale
are unlikely to meet the
costs of the public
auction, by direct sale; or
(b) determine that the land is to be
transferred to the Crown or, if a
council agrees, to that council.
(3) For the purposes of selling or transferring
land, the Director may
(a) cause the land to be subdivided if
this is otherwise allowed by law;
and
(b) carry out any work on the land or
otherwise develop the land; and
(c) require an occupier of the land to
vacate it; and
(d) do anything a mortgagee may do
under the Land Titles Act 1980 in
the case of default of payment of
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money owing under a mortgage;
and
(e) grant any easements or enter into
covenants in respect of the land.
(4) Not less than 90 days before the Director
sells land under subsection (2)(a), makes
a determination to transfer land under
subsection (2)(b) or takes any action
under subsection (3), the Director must
cause notice that he or she intends to do
so
(a) to be published in at least 3
newspapers published and
circulating generally in
Tasmania; and
(b) to be posted on the land.
(5) If land is sold by the Director under
subsection (2)(a)
(a) the registration of a memorandum
of transfer vests the title to the
land in the purchaser; and
(b) the title vested in the purchaser is
freed of
(i) all mortgages and
charges; and
(ii) any caveat that if not
removed would forbid the
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registration of the
memorandum of transfer
or execution of the
indenture of conveyance;
and
(iii) any other encumbrance or
interest other than an
encumbrance or interest
which the Director
determines, in writing
provided to the Recorder
of Titles, should remain in
force; and
(iv) all leases and licences;
and
(c) the memorandum of transfer or
indenture of conveyance by the
Director is evidence that the
requirements of this Act in
relation to the sale of the land
have been complied with.
(6) Any money received on the sale of the
land under subsection (2)(a) is to be
applied as follows:
(a) firstly, in paying the costs of the
sale and any other costs incurred
in proceeding under this section;
(b) secondly, in meeting the
reasonable costs incurred by the
Director in doing the work or
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taking the action under
section 74T;
(c) thirdly, in discharging any
liabilities to the Crown or a
council for rates or taxes in
respect of the land;
(d) fourthly, in discharging any
liabilities secured by registered
mortgages and other
encumbrances;
(e) fifthly, in discharging any other
mortgages or other encumbrances
of which the Director has notice.
(7) If, after all disbursements referred to in
subsection (6) have been paid, there
remain proceeds from the sale of the
land, the excess is to be paid to the
Public Trustee and such payment is taken
to be an order made under section 25(1)
of the Public Trustee Act 1930.
(8) If the reasonable attempt of the Director
to sell land under subsection (2)(a) is
unsuccessful, the Director may determine
that the land is to be transferred to the
Crown or, if a council agrees, to that
council.
(9) A determination made under
subsection (2)(b) or (8), if done in a form
approved by the Recorder of Titles,
operates as a memorandum of transfer.
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(10) If a determination under
subsection (2)(b) or (8) is made
(a) the land to which the
determination relates is freed of
any charge against the land that
exists by reason of this Act; and
(b) any outstanding liability to the
Crown in respect of the land that
exists by reason of this Act is
discharged.
(11) If land is transferred to the Crown or to a
council under this section and the value
of the land exceeds the total cost that the
Director is entitled to recover under this
Division, the Crown or council
(a) is to apply an amount equal to
that excess as specified in
subsection (6); and
(b) if part of that amount remains
after being so applied, is to pay
that remaining part to the Public
Trustee and such payment is
taken to be an order made under
section 25(1) of the Public
Trustee Act 1930.
(12) If the Director, in good faith, has sold
land or determined that land be
transferred to the Crown or a council
under this section, neither the Director,
the Crown nor the council is liable to pay
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damages or compensation or otherwise
make reparation to any person in respect
of
(a) the sale of the land; or
(b) the making of the determination;
or
(c) the transfer of the land.
Division 6 Miscellaneous
74Y. Responsibility of related body corporate
(1) In this section
"related body corporate" has the
same meaning as in the
Corporations Act.
(2) Instead of, or in addition to, serving a
notice on a company, the Director may
serve that notice on a related body
corporate if, within the immediately
preceding 2 years, one or more of the
following events have occurred:
(a) the company has been wound up;
(b) proceedings for the winding-up of
the company have been
commenced;
(c) assets of the company have been
transferred to another company.
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(3) For the purposes of this Part, if
(a) a company is wholly or partly
responsible for the release in, on
or under an area of land of the
pollutant which is the cause of a
notice being issued; and
(b) the company has been wound up
or its assets have been transferred
to another company; and
(c) a related body corporate has been
served with a notice under
subsection (2)
the related body corporate which has
been so served with the notice is taken to
be responsible for the release of that
pollutant, with the responsibility of the
company for the presence of the pollutant
in, on or under the area of land in respect
of which the notice was served being
equally divided between each such
related body corporate.
8. Section 92 amended (Powers of authorized officers
and council officers)
Section 92 of the Principal Act is amended as
follows:
(a) by omitting from subsection (1)(d)
"substance or" and substituting "air, soil,
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sand, rock, water, other solid or liquid
substance or any other";
(b) by omitting from subsection (2)(d) "out"
and substituting "out, or that the place is
or may be a contaminated site,".
9. Section 102 amended (Regulations)
Section 102 of the Principal Act is amended as
follows:
(a) by omitting from subsection (2)
"Regulations" and substituting "Without
limiting the generality of subsection (1),
regulations";
(b) by inserting the following paragraph after
paragraph (c) in subsection (2):
(ca) matters relating to contaminated
sites, including but not limited
to
(i) the undertaking of
independent reviews and
audits in relation to the
contaminated site; and
(ii) the accreditation of
independent reviewers
and auditors; and
(iii) the establishment of
committees for purposes
58
Environmental Management and Pollution Control Amendment
(Contaminated Sites) Act 2007
Act No. of
s. 9
related to the
accreditation of
independent reviewers
and auditors; and
(iv) the issue and publication
of guidelines relating to
the accreditation of
independent reviewers
and auditors; and
(c) by omitting from subsection (3A)(e)
"conditions." and substituting
"conditions; and";
(d) by inserting the following paragraphs
after paragraph (e) in subsection (3A):
(f) in respect of independent reviews
and audits relating to
contaminated sites and the
accreditation of independent
reviewers and auditors; and
(g) in respect of any other matter
relating to such contaminated
sites.
Government Printer, Tasmania 59