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New South Australian plan: developer who wants to convert an old industrial site into residential housing deemed to have caused site or water contamination

Posted by gasweek on 9 October, 2007

A change to the law on contaminated land clean-up was a person who brings about a land use that is a rezone that results in site contamination becoming relevant (for instance, a developer who wants to convert an old industrial site into residential housing) will be deemed to have caused site contamination. The Bill: A South Australia Environment Protection (Site Contamination) Amendment Bill was designed so that a planned new use would trigger a clean-up by the original polluter (the person whose activities introduced the chemicals to the source site) or, if that person was unavailable, the owner of the source site.

Escape clauses: These provisions would not proceed if the appropriate person has died or, in the case of a body corporate, ceased to exist, cannot be located or does not have the financial resources.

Michelle Lensink, Member of the South Australia Legislative Council, Liberal Party of Australia , speaking to the Environment Protection (Site Contamination) Amendment Bill on 11 September 2007, described the intent of the Bill:

New definition of site contamination:

• A a definition of site contamination in new section 5B of the Environment Protection Act; with

• notifications in section 83A regarding underground water;and

• division 1 related to the interpretation and application of site contamination;

• division 2 related to appropriate persons to be issued with orders and liability;

• division 3 to orders and other action to deal with site contamination;

• division 4 to site contamination auditors and audits; and

• division 5 to reports by site contamination auditors and consultants.

Triggered when when land rezoned: “The rezoning of some of our former industrial and commercial areas for residential developments—particularly areas close to the CBD with high market demand—means that the escalating prices have allowed the costs of remediation to be absorbed without the necessity for government intervention”.

Site contamination not the same as polluter-pays: “The EPA provided a number of examples, in a briefing, where the price of the land ended up taking care of that funding issue. “I understand that, because the bill is risk based, it does not say that site contamination is the same as polluter-pays and, therefore, it is not dependent on what pollution exists at the site”.

Example: “A site may contain any volume of carcinogens but, if no person is to enter it and the pollution is not harming the environment, it was not be considered contaminated”.

The use forms the trigger: “The issue depends on what the site is to be used for—in particular, if the site is to be developed or redeveloped for sensitive land use (that is, residential, primary school, a child-care centre or nursing home) the site contamination process will be triggered. The standards for industrial-zoned land, obviously, are not as high as they are for sensitive land use”.

Who pays: “There is the issue of who will be asked to assess site contamination and clean it up—that is, who pays—and this is one of the areas that many of us struggled with in terms of the innocent owner versus the concept of `buyer beware’.

Reference: Michelle Lensink, Member of the Legislative Council, Australian politician, Liberal Party of Australia, Legislative Council, South Australia, 11 September 2007.

Erisk Net, 29/9/2007

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