The Contaminated Sites Act 2003 (WA) is the primary legislation in Western Australia which provides when land is classified as contaminated and establishes a hierarchy for remediation responsibilities. The contamination of land is an important consideration, whether it arises prior to the purchase of land, due to particular land uses such as petrol stations, or a result of an environmental accident such as an oil spill.
- What is a contaminated site?
The Contaminated Sites Act 2003 (WA) (CS Act) establishes the regime for reporting, classifying, investigating, and remediating contaminated sites. Under the CS Act, ‘contaminated’ in relation to land, water or a site, means having a substance present in or on that land, water or site at above background concentrations that presents, or has the potential to present, a risk of harm to human health, the environment or any environmental value. A ‘site’ is an area of land and includes underground water under that land and surface water on the land.
Common substances that could contaminate land or groundwater include hydrocarbon from petrol and diesel fuel, per- and polyfluoroalkyl substances (PFAS), contaminated recycled material or material containing or contaminated by asbestos.
- When does a contaminated site require remediation and who is responsible for the remediation?
The only sites that are required to be remediate are sites classified by the Department of Water and Environmental Regulation as ‘contaminated – remediation required’. The hierarchy of responsibility is outlined in the CS Act, which follows a ‘polluter pays principle’. Generally, the person who caused or contributed to the contamination of the site is responsible for remediation of the site. It could, in some circumstances be the owner of the site or ultimately the Government if no other potentially liable party can be found.
Determining the polluter or other person responsible for remediation of a site can be a complex issue. Responsibility for remediation may also be affected by provisions in legal agreements such as leases or contracts for sale.
- Contamination caused by a third-party has migrated to my land – can I obtain compensation?
In circumstances where contamination has migrated from one site (the source site) to affect another site (the affected site), the person responsible for remediating the source site is also responsible for the affected site. The person responsible for remediating the source site may also be liable for any loss suffered by you as a result of entering the land to carry out remediation. You may be able to obtain damages and compensation where land has been contaminated by a third-party and requires remediation.
- What should I consider when buying or leasing known or suspected contaminated land?
Depending on how you would like to develop the land, it would be important to identify the risks. You could consider:
- conducting due diligence on site selection including obtaining a detailed history of the site and its land use as well as the land uses of surrounding land;
- when buying or leasing land, reviewing any pre-sale information or contractual terms or obligations regarding remediation;
- undertaking searches on the contaminated sites register; or
- engaging an environmental consultant to carry out a preliminary site investigation.
- Guidance – legal issues
Guidance in our experience is often needed to navigate the complex legal and regulatory issues that arise from contaminated sites. We recommend that you seek legal advice at an early stage.
Our capability statement (view here) provides further details of the types of matters we have assisted with including contaminated sites related to privately owned land, large scale waste facilities, service stations and third party compensation for remediation. If you would like to discuss your contaminated sites matter with us, please contact us by telephone on (08) 6460 5179 or by email at firstname.lastname@example.org.