Gives the Environment Protection Authority (EPA) the legal power to identify land that is contaminated to a degree that requires regulation, to declare it “significantly contaminated land” (s 11), and to publish and keep records about those declarations (ss 11, 58).
Allows the EPA to require investigations by written order (preliminary investigation orders) served on specified persons (s 10) and to serve management orders on "appropriate persons" (generally contaminators, owners or certain notional owners) requiring investigation, remediation, monitoring or restrictions on use (ss 13–16). Management orders must describe the land, the contamination and the actions required, and give a reasonable period for compliance (s 15). The EPA can also make ongoing maintenance orders and impose restrictions or public positive covenants over land to secure long term management (ss 28–29).
Provides for voluntary management proposals that the EPA may approve to manage contaminated land; approved voluntary proposals can displace some EPA action if carried out (s 17).
Enables the EPA to step in and carry out orders itself, or direct another public authority to do so, if the person served fails to act (s 30). The EPA and other public authorities may recover costs from persons (ss 34–36) and may register cost notices as charges on land that (on registration) take priority over earlier encumbrances (ss 39–41).
Introduces financial assurance: the EPA may require an assurer to provide securities (bank guarantees, bonds or other forms) to secure funds for required actions; the EPA may realise those assurances if the assurer fails to carry out the work and may itself carry out the work (Div 6A, ss 42A–42K).
The Contaminated Land Management Act 1997 establishes a regulatory regime for identifying, investigating, managing and, where necessary, remediating land that the Environment Protection Authority (EPA) considers contaminated to a degree that warrants intervention. At its core, s 3(1) states the general object is “to establish a process for investigating and (where appropriate) remediating land that the EPA considers to be contaminated significantly enough to require regulation under Division 2 of Part 3”. Particular objects listed in s 3(2) include clarifying accountabilities (s 3(2)(a)), defining the EPA’s supervisory role (s 3(2)(b)), providing for accreditation of site auditors (s 3(2)(c)), and ensuring management accords with the principles of ecologically sustainable development (s 3(2)(d)).
The Act operates through a staged approach. First, the EPA may issue a preliminary investigation order under s 10(1) directing a person to investigate whether specified land is contaminated with specified substances, the nature and extent of that contamination, and to provide information to the EPA. Such an order may be served on persons reasonably suspected of responsibility, owners, notional owners, persons carrying on relevant activities, or public authorities (s 10(3)). Failure to comply without reasonable excuse attracts substantial penalties: $1,000,000 for a corporation plus $120,000 per day for a continuing offence, or $250,000 plus $60,000 per day for an individual (s 10(5)).
If the EPA forms the view that contamination is significant enough to warrant regulation, it may declare the land to be significantly contaminated land by notice published in the Gazette (s 11(1)–(2)). The notice must describe the land, specify the contaminants, state the harm or risk, advise that voluntary management remains possible, and invite submissions within at least 21 days on whether a management order should be issued (s 11(2)(e)). Before making the declaration the EPA must consider relevant guidelines and the factors listed in s 12(1), including whether the substances have caused harm, their toxicity, persistence or bioaccumulation, available exposure pathways, current and approved uses of the land and adjoining land, and the likelihood of migration.
Current sections
Direct links to the current provisions in Contaminated Land Management Act 1997.
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Establishes a specialist site‑auditor system: an accreditation panel advises on accreditation, the EPA accredits site auditors, sets conditions and can suspend, revoke or refuse renewals; site auditors must produce site audit reports and statements and avoid conflicts of interest (Part 4, ss 49–56, 53B, 54).
Requires people who contaminate land and owners of contaminated land to notify the EPA in specified circumstances (s 60). The EPA must notify local authorities of declarations and orders (s 59).
Provides criminal and civil enforcement pathways: penalties for non‑compliance with orders and reporting duties; powers for courts to confirm, alter or revoke orders on appeal to the Land and Environment Court; and additional court orders after offences (Part 6; Part 10, including ss 61–62, 95AA–95AF, 95A–95B).
Creates personal liability and recovery tools where corporate structures are used to avoid remediation obligations (orders against directors or related companies; ss 63–65, 95C, 103A, 98/98A).
Gives authorised officers entry and investigation powers in relation to suspected contamination (ss 96B–96C) and sets rules on evidence, confidentiality and public access to EPA records and guidelines (ss 58, 71, 107, 105).
Who pays, who decides, and how behaviour changes
Who decides: the EPA is the central decision‑maker on declaring land significantly contaminated (s 11), on choosing appropriate persons to be subject to management orders (s 13), on approving voluntary proposals (s 17), and on requiring financial assurances (ss 42B–42D). The Land and Environment Court decides appeals and may itself make or vary orders (ss 61–62, 95AA–95AF).
Who pays: the person responsible for contamination (as defined in s 6) is the primary target for orders and cost recovery (ss 14, 34, 36). Owners and occupiers may also be required to comply and pay in certain circumstances (ss 14, 28). Public authorities that carry out work may recover their costs from responsible persons or owners (ss 34–35). If a public authority funds work from parliamentary appropriations and recovers money, part must be returned to the Consolidated Fund (s 42).
Behaviour changes the law seeks to cause: persons and businesses that cause contamination will face obligations to investigate, remediate, monitor and possibly restrict uses of land (ss 10, 14, 16, 28). The duty to notify (s 60), the prospect of financial assurances (ss 42A–42D) and the ability of the EPA to realise assurances (s 42G) create incentives to plan and fund remediation. Accreditation of site auditors creates a regulated market for specialist audit services (Part 4). Registration of charges on land (ss 39–41) changes the financial calculus of buying, selling or mortgaging contaminated properties.
Stated purposes and how they map to trade‑offs and costs
Stated purposes: the Act’s general object is to establish a process for investigating and remediating land the EPA considers sufficiently contaminated to need regulation (s 3(1)). Particular objects include setting accountabilities, defining the EPA’s role, accrediting site auditors and ensuring management has regard to ecologically sustainable development (s 3(2); s 9 sets out those principles, including a reference to the "polluter pays" idea at s 9(3)(d)(i)).
Trade‑offs and opportunity costs (mechanisms):
Compliance and remediation costs fall on identifiable parties (responsible persons, owners), with recovery mechanisms against other responsible parties (ss 34–36). That channels direct costs to those targeted but may impose significant liabilities on owners who are not the original contaminators (s 36(4)), subject to recovery options.
Financial assurances (ss 42A–42D) shift the timing of costs (pre‑funding or security), reducing the risk of unpaid future remediation but creating immediate capital or credit costs for the person required to provide assurance.
Registration of charges on title (s 40) secures public authority costs but can reduce marketability or value of land and affect mortgage priorities (s 40(3)).
Accreditation and audit requirements (Part 4) create compliance costs and a market for accredited auditors; they also create a gatekeeping role that affects who may carry out statutory audits (ss 49–51, 53B, 54).
EPA discretion (e.g. to declare land s 11, to select appropriate persons s 13, to require financial assurance s 42B) concentrates decision power in a regulator; this can improve targeted action but raises implementation risk and reliance on agency resourcing and judgment (s 8 sets EPA duties and s 106 requires reasons for certain decisions).
Implementation risk, compliance burden and bureaucratic discretion
Implementation risk: the EPA’s duties to investigate and regulate (s 8) and its broad discretion to act "as necessary" (s 8(3)) mean outcomes depend on EPA resourcing and interpretation of technical guidelines (ss 8, 105). The Act refers repeatedly to guidelines that the EPA makes and must consult on (s 105), so technical determinations and thresholds are partly delegated to administrative instruments.
Compliance burden: obligations include responding to investigation and management orders (ss 10, 14, 28), preparing plans, funding remediation or financial assurances (ss 14(1A), 42A–42D), commissioning accredited site audits (ss 53B, 53C), and notifying the EPA when contamination meets specified thresholds (s 60). Failure to comply attracts substantial penalties (see, for example, ss 10(5), 14(6), 28(4), 60(1)–(2), 103).
Bureaucratic discretion and procedural checks: the EPA has a range of discretionary powers (declarations s 11, selection of appropriate persons s 13, approval of voluntary proposals s 17, financial assurances s 42B–42D). Procedural limits include requirements to consider submissions when making a management order (s 14(4)), duties to give reasons for some decisions (s 106), and avenues of appeal to the Land and Environment Court (ss 61–62). The Act also provides for public records and notification policies (ss 11(5), 58, 59) to support transparency.
Effects on private enterprise, property and markets
Property transactions: the ability to register cost notices and create priority charges on land (ss 39–40) affects title risk and can alter sale and lending decisions.
Competition and business choice: management orders and ongoing maintenance orders can require cessation of activities or prohibit future uses of land (ss 16(h), 28(d)–(e), 29(3)(d)–(e)), which limits operational and investment choices for businesses and owners.
Contract freedom and recovery rights: while a person who has contractually shifted responsibility remains liable under the Act (s 6(6)), the Act preserves private rights of recovery between parties (noted in the note after s 13 and implemented in Div 6, s 36), so private contract arrangements remain relevant but do not displace statutory accountability.
Concentrated benefits, diffuse costs and capture risks (mechanisms rather than labels)
Concentrated benefits: public authorities and the community may gain from remediation and restored land values; contractors, accredited auditors and remediation firms may gain business from ordered remediation and audits (Part 4, ss 50–53B).
Diffuse costs: many property buyers, owners and small businesses may face additional due diligence, reporting and remediation obligations or restrictions that are dispersed across market participants (ss 59, 60, 29).
Capture and rent‑seeking risk (mechanism): accreditation and guideline‑driven technical standards (ss 49–51, 105) create a small regulated market for auditors and technical services; the EPA controls accreditation, conditions and fees (ss 50–53), concentrating regulatory gatekeeping.
Unintended or substitution effects to watch for (mechanisms supported by the Act)
Where a responsible party is hard to identify or is insolvent, costs may fall initially to owners or public authorities, who then seek recovery (s 36; s 37 gives public authority priority where owner insolvent).
The notional owner concept (s 7) and director/company‑level orders (ss 63–65, 95C) create routes to hold persons connected to corporate structures liable, which can alter corporate behaviour (e.g. in asset transfers) but also raises litigation and compliance costs.
Financial assurance requirements (ss 42A–42D) can reduce the risk of unfunded remediation but may shift the need for capital or credit lines and influence project viability.
Key procedural protections
Right of appeal to Land and Environment Court against management orders (s 61) and procedural requirements on EPA (consider submissions s 14(4), give reasons s 106) provide administrative review and judicial oversight.
The Act provides for information protections (s 107) but also requires public records (s 58) and local authority notifications (s 59).
In short: the Act sets a regulatory framework where the EPA identifies seriously contaminated land, requires or approves investigation and remediation, accredits specialist auditors, recovers costs (including by registering charges on title), and may require financial assurances. The legal design places the primary financial burden on persons responsible for contamination (s 6) and enforces compliance through orders, penalties, civil recovery and court powers, while embedding administrative discretion and delegation to technical guidelines that shape implementation (ss 8, 105, Div 6A).
Once land is declared significantly contaminated, the EPA selects an “appropriate person” to be subject to a management order (s 13). The hierarchy prefers a person responsible for the significant contamination over an owner or notional owner (s 13(3)), but the EPA may choose an owner or notional owner if no responsible person can be found or is able to pay (s 13(4)). Special rules apply where contamination originates from a cattle dip site (s 13(5)). A management order issued under s 14(1) may require the recipient to carry out specified management actions or submit a plan of management for EPA approval. The order must set out the land, the nature of the contamination and harm, the required action, a reasonable time for compliance, and any other prescribed matter (s 15(1)). The time allowed must ordinarily exceed the appeal period unless urgent public-interest action is required (s 15(2)).
Section 16 provides an extensive but non-exhaustive list of actions a management order may require, ranging from further investigation (s 16(a)–(c)), actual remediation (s 16(d)), monitoring (s 16(e)), physical barriers (s 16(f)), removal or treatment of materials (s 16(g)), cessation of activities (s 16(h)), erection of signs (s 16(i)), depth restrictions (s 16(j)), entry onto other land (s 16(k)), notification of occupiers (s 16(l)), auditing by a site auditor (s 16(m)), progress reports (s 16(n)), reporting of groundwater contamination to the Minister administering the Water Management Act 2000 (s 16(o)), public availability of reports (s 16(p)), public meetings (s 16(q)), and notification of changes in ownership or occupancy (s 16(r)).
Parallel to regulatory orders, persons may submit a voluntary management proposal under s 17(1). The EPA may approve it (with or without conditions) if satisfied that the terms are appropriate, reasonable steps have been taken to identify and consult all owners, notional owners and responsible persons, and those persons have been given an opportunity to participate (s 17(4)). Approval may be withdrawn if the proposal is not carried out, does not adequately address a matter, or was based on false or misleading information (s 17(6)). Approved parties who carry out an approved voluntary management proposal may, subject to certain limitations, recover contributions under Division 6 as if the work had been done under a management order (s 17(8)).
Division 3 provides for ongoing maintenance. After remediation or approval of a voluntary proposal, the EPA may issue an ongoing maintenance order under s 28(2) requiring an owner or occupier to carry out long-term management, provide reports, refrain from specified activities or uses, or meet any other prescribed requirement. Such an order must specify when it ceases to have effect (s 28(3)). Breach attracts the same maximum penalties as a management order (s 28(4)). The EPA may also impose restrictions or public positive covenants under s 29 using s 88E of the Conveyancing Act 1919; these bind successors in title and can be enforced by the EPA without the need for the covenantor’s signature on the instrument (s 29(4)).
Division 4 allows a public authority to step in if a person fails to comply with an order (s 30) and imposes a duty on public authorities to comply with orders made against them (s 31). Division 5 deals with entry onto land. An order does not itself authorise entry without the occupier’s permission (s 32(1)), but if permission is refused the EPA may revoke the original order and issue a new one directed to the occupier (s 32(2)). Persons entering with permission are liable for losses caused to the occupier or owner unless the regulations provide otherwise, and must take reasonable steps to minimise harm, make restitution and compensate (s 33).
Division 6 governs costs. The EPA may recover its own costs of preparing, serving, monitoring or enforcing orders or assessing voluntary proposals (s 34). Public authorities that carry out works may recover their reasonable costs from the person subject to the order or, in certain cases, from the owner (s 35). Persons who carry out works under an order and are not themselves responsible for the contamination may recover a just and reasonable portion of their costs from those who are responsible (s 36(1)–(2)). Even a responsible person may recover a portion from other responsible persons (s 36(3)). Owners or notional owners who pay EPA or public-authority costs but are not responsible may likewise recover (s 36(4)). The portion must reflect relative responsibility and reasonable steps taken (s 36(5)). A public authority that carries out works on disclaimed land in insolvency obtains priority over secured creditors (s 37). Liability of executors, trustees and the NSW Trustee and Guardian is limited to the value of assets they can lawfully realise (s 38).
Division 6A, inserted in 2014, authorises the EPA to require financial assurances (bank guarantees, bonds or other security) to guarantee funding for actions required by management orders, ongoing maintenance orders or s 29 covenants (s 42A). The EPA must be satisfied the requirement is justified having regard to risk, remediation needs, the person’s environmental record, financial capacity or other prescribed matters (s 42B). The amount must not exceed the EPA’s reasonable estimate of total likely costs including supervision (s 42D(2A)). Detailed rules govern claiming on or realising the assurance (s 42G), lapsing when the EPA is satisfied the work has been completed (s 42H), and protection from liability for the EPA and State when carrying out the work (s 42I).
Part 4 establishes a statutory site audit regime. Only accredited site auditors may carry out statutory site audits (s 47) or represent that they may do so (s 48). The accreditation panel convened by the EPA (s 49) advises on suitability. Applicants must satisfy guidelines as to experience, integrity, knowledge of legislation and methods, insurance and other matters (s 51(2)(b)). Accreditation is granted for up to three years and may be subject to conditions (s 51(4), s 53). Site auditors must avoid conflicts of interest (s 54), furnish site audit reports and statements in the approved form (s 53B), notify the EPA of commissions (s 53C), lodge annual returns (s 53D) and report material changes (s 53D(4)–(5)). The EPA may suspend, revoke or refuse renewal on grounds including failure to meet guideline standards, breach of conditions or directions, or poor quality of work (s 56).
Part 5 requires the EPA to maintain a public record of current declarations, orders, approved voluntary proposals and site audit statements (s 58) and to notify local authorities (s 59). A statutory duty to report contamination is imposed on persons whose activities have contaminated land and on owners, where the contamination has entered or will enter neighbouring land, air or water above prescribed or guideline levels, or where soil concentrations equal or exceed guideline levels and exposure has occurred or is foreseeable (s 60(3)). Information supplied under the duty is inadmissible in proceedings against the supplier except for an offence under the section itself (s 60(7)).
Part 6 provides a right of appeal to the Land and Environment Court against management orders within 21 days (s 61). The Court may confirm, revoke or vary the order (s 62). Part 7 permits the Court, on application by the EPA, to order directors, holding companies or persons involved in schemes to avoid liability to carry out management orders at their own expense in defined winding-up or land-transfer scenarios (ss 63–65).
Part 10 creates offences, including for breach of orders (ss 10(5), 14(6), 28(4), 45), carrying out or holding out statutory site audits without accreditation (s 48), false or misleading information (s 103), and failing to report contamination (s 60(1)–(2)). Executive liability for directors and managers applies to certain offences (s 98). The Court may make a wide range of additional orders on conviction, including restoration, compensation, publication, environmental audits, training, restorative justice activities and monetary benefit penalties (ss 95A–95B). Civil recovery of monetary benefits from related persons is also available (s 95C).
The Act is supported by guidelines (s 105) that the EPA must consult on, publish and take into account, and by a broad regulation-making power (s 112).
Who it affects
The Act casts a wide net. Primary responsibility falls on persons who “caused” contamination or whose acts converted non-contaminating substances into contaminants (s 6(1)(a)–(b)), owners or occupiers who knew or ought to have known contamination would occur and failed to prevent it (s 6(1)(c)), and persons carrying on activities generating or consuming the same or convertible substances unless they prove they did not cause the contamination (s 6(1)(d)). Responsibility for significant contamination also extends to those whose acts changed pre-existing contamination so that it became significant or changed the approved use of land thereby increasing risk (s 6(2)).
Owners (including Crown lessees) and notional owners (mortgagees in possession or persons with vested interests enabling them to realise the freehold value, subject to exclusions in s 7(2)) may be made subject to management orders if no responsible person is available or able to pay (s 13(2)–(4)). Public authorities can be ordered to act and must comply (s 31). Local authorities receive notification of declarations, orders and site audit statements and must include prescribed information in planning certificates under s 10.7 of the Environmental Planning and Assessment Act 1979 (s 59).
Site auditors, their clients, the accreditation panel, and persons commissioning statutory site audits are directly regulated under Part 4. Developers and persons seeking planning approval are affected because an application for planning approval is expressly included in the concept of an act that can change the approved use and trigger responsibility (s 6(4)), and because site audit statements are often required to satisfy planning authorities.
The EPA itself is subject to statutory duties to examine information, address significant contamination, record its actions and respond to informants (s 8), to have regard to ecologically sustainable development (s 9), and to follow procedural safeguards before making declarations or orders. The broader community benefits from the public record (s 58), the right to make submissions (s 11(2)(e)), and the ability to bring proceedings with leave of the Land and Environment Court (s 95).
Key duties and rights
Duties fall most heavily on those responsible for contamination. They must comply with preliminary investigation orders (s 10), management orders (s 14(6)), ongoing maintenance orders (s 28(4)), and the statutory duty to report contamination meeting the criteria in s 60(3). They must not obstruct persons carrying out works (s 45) and must not supply false or misleading information (s 103).
Owners and occupiers have a duty to comply with ongoing maintenance orders (s 28) and may become subject to management orders if responsible persons cannot be located or are insolvent. They must also report contamination of which they become aware (s 60(2)).
Site auditors must avoid conflicts of interest (s 54), prepare reports containing a critical review and reasons (s 53B(2)), issue statements consistent with those reasons (s 53B(4)), notify the EPA of commissions (s 53C), lodge annual returns detailing audits and any disciplinary action or changes in insurance or team (s 53D), and comply with any direction issued under s 53A.
The EPA’s duties are set out in s 8 (examine information, address significant contamination, record reasons, respond to informants) and s 9 (have regard to ecologically sustainable development principles including the precautionary principle, inter-generational equity, conservation of biological diversity and improved valuation and pricing). It must consider submissions before issuing a management order (s 14(4)), although it may act immediately in the public interest (s 14(5)), and must publish a policy on public notification of declarations (s 11(5)).
Rights include the right of appeal to the Land and Environment Court against management orders (s 61), the right of persons who carry out works to recover just and reasonable contributions from other responsible persons (s 36), the right of a public authority to priority over security holders when it remediates disclaimed land (s 37), and the right of any person to bring proceedings in the Land and Environment Court with leave to remedy or restrain breaches (s 96). Persons who provide information under the s 60 duty receive use immunity (s 60(7)). Owners may recover costs paid under cost notices if they are not responsible (s 36(4)).
Penalties and enforcement
Maximum penalties have been calibrated to the seriousness of the breach and the identity of the offender. Breach of a preliminary investigation order attracts $1,000,000 / $250,000 plus daily penalties of $120,000 / $60,000 (s 10(5)). Management orders carry $1,000,000 / $250,000 (if the person is responsible for contamination) or $137,500 / $66,000 (otherwise) plus the same daily amounts (s 14(6)). Ongoing maintenance orders attract $1,000,000 / $250,000 plus daily penalties (s 28(4)). Obstruction carries the same maxima (s 45). Failure to report contamination under s 60 attracts $2,000,000 / $500,000 plus daily penalties of $240,000 / $120,000. Unaccredited carrying out or holding out of statutory site audits attracts $1,000,000 / $250,000 plus daily penalties (s 48). False or misleading information carries up to $137,500 / $66,000 or, for certain orders or audits, $1,000,000 / $250,000 or 18 months imprisonment (s 103).
Enforcement tools are layered. The EPA may issue penalty notices for prescribed offences (s 92A). It may carry out works itself or direct a public authority to do so and recover costs (s 30, ss 34–35). Charges on land may be registered to secure unpaid costs and take priority over existing encumbrances (ss 39–40). Financial assurances may be called upon after notice and consideration of representations (s 42G). On conviction the Court may order restoration, compensation, publication, environmental audits, training, restorative justice activities, payment of monetary benefits (s 95A), or payment into a fund or to an entity for environmental works (s 95B). Civil recovery of monetary benefits from related persons is available under s 95C. Executive liability (s 98) and accessory liability (s 98A) extend personal exposure to directors and managers. Continuing offences are created by s 100.
How it interacts with other laws
The Act is expressly linked to the Protection of the Environment Operations Act 1997 (POEO Act). Authorised officers are appointed under Part 7.2 of that Act (s 4), the definition of “environment” follows that in the Protection of the Environment Administration Act 1991 (s 4), and environment protection legislation is defined by reference to the same Act. The EPA may issue clean-up, prevention or investigation notices under Parts 4.1A, 4.2 or 4.3 of the POEO Act in relation to significantly contaminated land or land notified under s 60, and such notices are taken to have been given under the POEO Act (s 46). Chapter 7 (Investigation) of the POEO Act is picked up for powers of entry and investigation (s 96B).
Close integration exists with the Environmental Planning and Assessment Act 1979. “Planning approval” and “environmental planning instrument” are defined by reference to that Act (s 4). Changing the approved use can itself trigger responsibility for significant contamination (s 6(2)(b)). Planning certificates must disclose declarations, orders, approved voluntary proposals, ongoing maintenance orders and site audit statements (s 59(2)). Site audit statements are frequently required to satisfy consent authorities.
The Act cross-references the Crown Land Management Act 2016 for the Western Division and perpetual leases (s 4), the Biosecurity Act 2015 and former Stock Diseases Act 1923 for cattle dip sites (ss 11(4)(e), 13(5)), the Conveyancing Act 1919 for covenants (s 29), the Real Property Act 1900 for registration of charges (s 40), the Corporations Act 2001 (Cth) for related bodies corporate, holding companies and voidable transactions (ss 6, 63–65), and the Water Management Act 2000 for groundwater reporting (s 16(o)).
The principles of ecologically sustainable development are imported from the Protection of the Environment Administration Act 1991 and elaborated in s 9(3). The Interpretation Act 1987 applies to undefined terms (note to s 4(1)).
Recent changes and why
The 2008 amendments substituted the whole of Parts 2 and 3 and substantially rewrote ss 4–9, 11–17, 28–46 and 58–60. The former distinction between investigation areas and remediation sites was replaced by a single declaration of significantly contaminated land (s 11) and a single management order that can encompass investigation, remediation, monitoring and public consultation (s 14). Responsibility rules were expanded to capture changes in pre-existing contamination or in approved use that increase risk even if the contaminant mass does not change (s 6(2)). The changes were designed to simplify the regulatory trigger, remove unnecessary duplication, strengthen the EPA’s ability to act on long-term or indirect risks, and improve cost recovery and public participation.
Division 6A on financial assurances was inserted in 2014 to give the EPA security that funds will be available for works, particularly where the responsible person’s financial capacity is uncertain (s 42B(c1)). The 2022 amendments expanded the range of court orders on conviction (ss 95AB–95AF, 95B, 95C), introduced executive liability for directors in relation to key order breaches and the duty to report (s 98), and clarified that the duty to report applies to owners as well as those whose activities caused contamination (s 60(2)). Penalty amounts were increased and continuing offence daily rates raised to maintain deterrence.
The 2024 amendments refined the evidence provisions (new ss 72, 72A) and adjusted jurisdictional limits for the Local Court (s 92). These changes respond to practical difficulties in proving contamination through traditional means and ensure that monetary benefit recovery and related-person liability keep pace with corporate structures used to avoid responsibility.
Each set of changes has been directed at closing loopholes identified in practice: migration of contaminants (s 5(4)), delayed effects (s 6(3)), insolvency schemes (ss 63–65), inadequate financial security, and the need for proportionate but effective sanctions.
Court challenges and controversies
Part 6 provides a direct right of appeal to the Land and Environment Court against management orders (s 61). The Court’s powers on appeal are broad: it may confirm, revoke or make any order the EPA could have made (s 62(2)). Because the Court stands in the EPA’s shoes, merits review is available on questions of whether land is significantly contaminated, whether the recipient is an appropriate person, and whether the required actions are reasonable.
Controversies have centred on the breadth of the responsibility net in s 6. The inclusion of owners who “ought reasonably to have known” (s 6(1)(c)), the reversal of onus for persons carrying on similar activities (s 6(1)(d)), and the extension to changes of use that increase risk without any change in contaminant mass (s 6(2)(b)) have been criticised as capturing parties far removed from the original pollution. The exclusion of mortgagees who are not in possession (s 7(2)(b)) and the limited liability of trustees (s 38) reflect a legislative judgment that innocent financiers and fiduciaries should not be disproportionately burdened, but the boundary between “notional owner” and mere security holder continues to generate dispute.
The interaction with planning law has produced litigation around whether the making of a development application itself constitutes the “act” that changes the approved use and triggers responsibility (s 6(4)). The statutory duty to report (s 60) has raised concerns about self-incrimination, although the use immunity in s 60(7) and the “ought reasonably to have been aware” test (s 60(5), (9)) attempt to balance disclosure with fairness.
Site auditor accreditation and conflict rules (s 54) have been tested where auditors have previously provided advisory services to the same client. The prohibition on reviewing one’s own work (s 54(1)(c)) is strict, reflecting the statutory audit’s quasi-regulatory function.
No specific court decisions are recited in the Act, but the appeal mechanism in ss 61–62, the broad discretion conferred on the EPA to choose appropriate persons (s 13), and the public-interest override in s 14(5) indicate that judicial review grounds (reasonableness, procedural fairness, irrelevant considerations) remain available alongside the statutory appeal.
Gotchas
Most practitioners assume that only the person who caused the contamination can be ordered to remediate. Section 6(1)(c) and (d) and the hierarchy in s 13(3) show that owners and notional owners can be targeted when a responsible person cannot be found or cannot pay, even if they did not cause the contamination. The “ought reasonably to have known” test is objective and can capture sophisticated purchasers who failed to conduct adequate due diligence.
Another common misconception is that contamination that has migrated from another site is the responsibility only of the source owner. Section 5(4) expressly provides that land may be contaminated land even if the contamination arrived by migration, and s 6(1)(a) captures any person who caused the original contamination.
The definition of “approved use” (s 4) includes uses that may lawfully be carried out without further planning approval. A change from an industrial to a residential approved use can therefore trigger responsibility under s 6(2)(b) even though no development consent has yet been obtained. Developers who lodge rezoning applications without first investigating historical contamination risk becoming responsible persons.
Financial assurances under Division 6A are not limited to the cost of the works; they may include the EPA’s estimated supervision costs (s 42D(2A)). Once called upon, the assurer has no right to dispute the quantum in advance; disputes are resolved after the fact in the Land and Environment Court (s 42K).
The duty to report under s 60 is triggered by awareness or constructive awareness (s 60(5)). The factors in s 60(9) (abilities, whether advice could have been sought, circumstances) mean that a sophisticated corporate landowner with in-house environmental staff is held to a higher standard than a domestic purchaser.
Section 36(7) allows parties to a voluntary management proposal to contract out of the contribution regime, but only if they expressly agree that s 36 is not to apply among themselves. Without that express agreement the statutory contribution rights remain available.
Finally, a management order does not itself authorise entry onto land (s 15(3), s 32(1)). If the occupier refuses access, the EPA’s remedy is to revoke the order and issue a fresh one directed to the occupier (s 32(2)). Failure to appreciate this sequencing can lead to unnecessary appeals or contempt applications.
How to comply
Compliance begins with due diligence. Any person acquiring, developing or financing land should obtain a Phase 1 environmental site assessment. If the history suggests potential contamination, a Phase 2 intrusive investigation is required to establish whether substances are present above guideline levels for the proposed or approved use.
If contamination that meets the s 60(3) criteria is identified, the duty to notify the EPA in the approved form arises immediately (s 60(4), (6)). The notice must address location, activities, nature of contamination, risk and any other prescribed matter.
Where the EPA declares land significantly contaminated, the recipient of a management order must comply with every direction within the stated time unless a reasonable excuse exists (s 14(6)). A reasonable excuse includes inability to obtain occupier consent where entry is essential (s 14(7)). Early engagement with the EPA to negotiate the scope of works or to submit a voluntary management proposal under s 17 is advisable. A voluntary proposal must identify all owners, notional owners and responsible persons, give them an opportunity to participate, and contain a timetable, monitoring and reporting obligations that the EPA can enforce (s 17(4)).
Site auditors must be engaged only after checking current accreditation, confirming no conflict of interest (s 54), and ensuring the auditor’s team possesses the necessary expertise. The auditor’s report must contain a critical review and transparent reasons; the statement must be consistent with those reasons (s 53B). Any direction issued under s 53A must be followed.
For ongoing maintenance, owners must ensure that covenants imposed under s 29 are disclosed to purchasers and that the land is not used for prohibited purposes. Annual or event-based reporting to the EPA is mandatory.
Cost recovery can be minimised by promptly carrying out required works, keeping detailed records of expenditure, and, where multiple responsible persons exist, documenting the relative contributions to contamination and steps taken. Where an owner pays EPA costs but is not responsible, a notice under s 36(4) should be issued promptly.
Financial assurances should be negotiated at the earliest stage. The amount must be supported by an independent estimate if required (s 42D(3)). The form (bank guarantee, bond or other security) must be acceptable to the EPA (s 42C).
All parties should maintain comprehensive records. The EPA is entitled to recover its own reasonable costs of preparing orders, monitoring compliance and enforcement (s 34), so transparency and cooperation reduce the likelihood of disputed costs.
Finally, any person served with an order should obtain specialist contaminated-land legal and technical advice immediately. The 21-day appeal period (s 61) is short, and the Court will expect evidence that the order is unreasonable or that another person is more appropriate. Early without-prejudice discussions with the EPA can often produce a mutually acceptable variation or a s 17 voluntary proposal that avoids the need for contested litigation.