Contaminated Sites Act
The Contaminated Sites Act 2003 (WA) (“the Act”) commenced on 1 December 2006. The Act operates retrospectively in that it not only applies to land which was contaminated on 1 December 2006, but also prior to that date, if the land was contaminated without lawful authority.
The Act is based on the “polluter pays” principle.
The Act establishes the Contaminated Sites Committee (“the CSC”) which has the power to determine and apportion liability.
The parties to whom the CSC may determine and apportion liability include:
- owners and previous owners;
- occupiers and previous occupiers;
- polluters of adjoining land;
- those wanting to change the use of the land.
Without Lawful Authority
The recent case of BP Australia Pty Ltd v Contaminated Sites Committee  WASC 221 reviewed the CSC’s decision to apportion liability to BP for an act that was committed prior to 1 December 2006 without lawful authority. The CSC looked at section 49(1) of the Environmental Protection Act 1986 (WA) (“EP Act”), in deciding whether an act was committed
without lawful authority, which provides:
“A person who causes or allows to be caused pollution commits an offence”.
The “act” that BP had committed was that BP had failed to properly maintain the pipe work on the land that it was leasing, contrary to the provisions of the lease. The CSC determined that as BP had caused pollution, or allowed pollution to be caused, an offence had been committed, and the contamination was therefore done without lawful authority. This determination was upheld on appeal to the Supreme Court. The finding that an act is unlawful pursuant to section 49(1) of the EP Act has a very wide application. Any contamination which falls within the scope of section 49(1) of the EP Act would
therefore be unlawful, and a polluter who had caused or allowed to be caused pollution prior to 1 December 2006 would be liable for remediation.
Lessors and Lessees need to review their leases to ensure they give adequate protection with respect to contamination. They should check the provisions in their leases with respect to the maintenance of fixtures and fittings on the premises, and also with respect to the responsibility to make good and, in particular, remediate the premises at the end of the lease.