It wasn't me: when a clean-up notice for contamination can be set aside

Can a landowner be required to clean up legacy contamination? A recent decision of the Queensland Planning and Environment Court provides essential lessons to demonstrate why this may not always be the case.

What is a clean-up notice?

A clean-up notice is a written notice issued under the Environmental Protection Act 1994 (Qld) for a contamination incident.

When can a clean-up notice be given and what can it do?

A clean-up notice may only be given to a person who is reasonably believed to be:

• an occupier of a place at or from which a contamination incident is happening (or happened)
• an individual or corporation who is causing or permitting (or caused or permitted) a contamination incident to happen; or
• an owner, individual or corporation in control of a contaminant involved in a contamination incident.

A clean-up notice must, amongst other things, state actions that the recipient must take and the time for each action to be taken.

It is an offence for a person not to comply with the notice unless the recipient has a reasonable excuse.

Hungtat v Chief Executive Department of Environment and Heritage Protection [2017] QPEC 62 -the facts

Hungtat operated a golf course in a catchment affected by acid sulfate soils (ASS), which, due to historical disturbance, had contributed to leaching of contaminants into nearby waterways and canals.

In 2012, Hungtat received a clean-up notice for a contamination incident involving release of acidic soil products and iron rich water into nearby waterways and canals from premises owned by Hungtat located west of Surfers Paradise, Queensland.

Hungtat appealed the issuing of the Notice to the Planning and Environment Court because it argued:

• the company not a prescribed person for a clean-up notice; and
• the company was not responsible for the contamination.

The factors relevant to the Planning and Environment Court setting aside the clean-up notice

Even though a contamination incident causing significant or material environmental harm had occurred, and the Planning and Environment Court accepted that Hungtat, as an occupier, met the statutory test for a person to whom a clean-up notice could be given, the Court ordered that the clean-up notice should not have been issued.

In this respect, the Court:

• was satisfied that Hungtat did not cause the contamination, which was both a legacy issue, and contributed to by a number of diffuse sources from elsewhere in the catchment. Activities undertaken by Hungtat had not caused or contributed to the contamination;
• found that the remedial actions required by the regulator in the clean up notice were inadequate to address the underlying historic acid sulfate issue, and unjustifiably disproportionate to the contribution of Hungtat to pre-existing contamination. The experts retained to provide a joint expert report to the Planning and Environment Court identified alternative works which would be more likely to address the historic acid sulfate issue;
• found that this was not a case in which there was clear and compelling evidence upon which the Court could be satisfied, on the balance of probabilities, that it was appropriate that the Notice be issued. This finding was supported by intra-departmental advice that had cautioned against the issuing of the Notice to Hungtat.

The effect of the decision

The case provides key lessons for regulators and recipients of clean-up notices:

• A regulator must:
• be able to prove causation between the happening of an incident and the liability of an owner/occupier or polluter to clean up. This is extremely important where premises are affected by pre-existing contamination; and
• ensure that the actions directed to be undertaken by a clean-up notice are both effective and proportionate to the liability of the recipient,
• A recipient of a clean-up notice should carefully review a clean-up notice with respect to both liability and the remedial actions required. For instance, remedial actions stated in a clean-up notice must be reasonable and proportionate to the source and extent of environmental harm caused by an incident. There are both internal review and appeal processes that may be considered by a recipient of a clean-up notice who believes that a clean-up notice has been wrongly issued.