Contamination risk management in property matters

On 15 August 2024, Howard Waldron, Co-founder and Director of Lotsearch, Gabrielle Guthrie, Principal of Guthrie Legal, and Helene Hogan, Product Manager at InfoTrack led an insightful webinar on “Contamination risk management in property matters”. The session delved into the complexities and challenges of navigating contamination risks in property transactions, offering practical guidance for legal and industry professionals.

What is contamination?

“Contamination means the condition of land or water where any chemical substance or waste has been added as a direct or indirect result of human activity at above background level and represents, or potentially represents, an adverse health or environmental impact.” ¹

Australia is estimated to have approximately 200,000 contaminated sites. Contamination significantly impacts the permitted uses and development potential of affected areas, and can have legal, financial, and business interruption consequences.

Legislation pertaining to contamination

In Australia, contamination is governed by a complex web of legislation rather than a single,consolidated law. New South Wales and Western Australia have specific legislation addressing contamination, while other states incorporate contamination provisions within broader environmental laws. This lack of a unified approach often leads to confusion in the wider community, underscoring the need for thorough environmental due diligence. Legal professionals play a critical role in navigating these complexities to protect clients during property transactions.

Contaminated land in Victoria

Victoria has been at the forefront of contamination management reform, particularly over the past three years. These changes mean that once a property is purchased, the new owner is legally obligated to manage any known contamination. Additionally, there is a legal duty to notify regulators if contamination exceeds certain thresholds. Regulators have the authority to issue notices requiring the investigation, management, and remediation of contaminated sites. In Victoria, these notices can be directed not only to the current owner or occupier but also to former owners, former occupiers, and/or the original contaminator.

Lotsearch

Lotsearch is Australia’s trusted source of land and property information, aiding industry experts to identify potential environmental risks. With access to over 1,000 information sources, Lotsearch provides nationwide searches, including those related to contaminated land and natural hazards. Lotsearch’s data collation from multiple sources ensures a comprehensive understanding of land contamination, enabling better due diligence.

The new Lotsearch EPA (Environmental Protection Authority) Priority Sites Plus+ report is an invaluable tool in this process, offering a consolidated view of EPA records related to contaminated land. This report not only aids in compliance with Victoria’s new Environment Act but also provides a clear picture of potential risks, enabling you to meet your legal obligations with confidence.

Top practitioner tips

Thoroughly understand environmental data reports: equip yourself with a range of environmental data report options to offer comprehensive solutions to clients.
Prioritise environmental reports early: discuss environmental reports from the outset of your client engagements to ensure all parties are aware of their importance.
Engage environmental experts: if environmental risk assessment is outside your expertise, partner with qualified consultants to provide accurate advice to aid due diligence.

For more in-depth information about land contamination and how it can have significant impacts on your clients and your business, watch the on-demand webinar. Equip yourself with the knowledge and tools needed to navigate this complex area of property law.

¹The National Environment Protection (Assessment of Site Contamination) Measure 1999 (the ASC NEPM) made under the National Environment Protection Council Act 1994 (Cth).