In our series covering recent amendments to the Environmental Protection (Powers and Penalties) and Other Legislation Amendment Act 2024 (Powers and Penalties Act) and the Environmental Protection and Other Legislation Amendment Act 2023 (Qld) (EPOLA Act), we explore the updates to the contaminated land provisions below.

Contaminated Land

The management of contaminated land continues to be a complex issue in Queensland.  The recent changes aim to strengthen and clarify provisions related to contaminated land, including:

  • the actions required to be taken to restore or rehabilitate environmental harm;
  • the duty to notify of environmental harm;
  • the grounds for an environmental investigation; and
  • requirements for contaminated land auditors.
Introduction of a duty to restore

Significantly, the Powers and Penalties Act introduces a ‘duty to restore’, which requires that, if a person causes or permits unlawful environmental harm through contamination, the person must take appropriate action, as soon as reasonably practicable, to rehabilitate or restore the environment. 

The duty to restore the environment places an obligation for the proactive remediation of environmental harm on the person responsible for the harm.  The purpose of the new duty is to clarify that a person should not wait for the administering authority to issue a notice to commence clean-up or remediate.  The duty to restore is intended to encourage awareness of environmental risks and consequences, and encourage quicker responses to incidents involving contamination to ensure they are remedied before they cause environmental harm.

Notification requirements

Previously, the Environmental Protection Act 1994 (Qld) (EP Act) requirement for notification was triggered when the operator became aware of ‘the happening of an event involving a hazardous contaminant’. 

The recent amendments expand the duty to notify to a much broader range of potential circumstances.  The duty to notify is now enlivened where a relevant person becomes aware or ought reasonably to have become aware of an event or the presence of a hazardous contaminant.  This means there no longer has to be a trigger ‘event’, but rather, the consideration of the possible consequences of the potential presence of contaminants.  This is a much stronger notification duty on operators.

It is also no longer a requirement for a hazardous contaminant to be in a concentration that is, or has, the potential to cause environmental harm.  This simplifies the notification obligation and is intended to reflect a policy position that many contaminants have the potential to cause environmental harm irrespective of their concentration. 

Investigations

The EPOLA Act and the Powers and Penalties Act have expanded the scope of when environmental investigations might be required by the regulator.

The EPOLA Act amended the EP Act to clarify that an investigation notice can be given to a prescribed responsible person to conduct an environmental investigation of contaminated land where it is satisfied, or suspects on reasonable grounds, the hazardous contaminant contaminating the land has the potential to cause serious environmental harm or material environmental harm. 

The previous investigation power was only triggered when the Department of Environment, Science and Innovation (DESI) was satisfied on reasonable grounds that the land was contaminated, rather than having a mere suspicion, and required consideration of the concentration of the hazardous contaminant.

The recent amendments in the Powers and Penalties Act also add that an investigation notice can be given to the prescribed person even if they hold an environmental authority that authorises, or purportedly authorises, activities carried out on the land.  While the meaning of the phrase ‘purportedly authorises’ is not clear, the legislative intent is said to clarify that an environmental authority will not prevent the issuing of an investigation notice.

Contaminated land investigation documents

Contaminated land investigations are notoriously complex.  The EPOLA Act amendments to the EP Act provide greater clarity as to the reporting and evidence requirements for investigations.  The requirement now separates the content requirements into reports, and, separately, draft site management plans. 

This amendment aims to clarify the requirements for each document to ensure the efficient function of the investigation.

Auditors

Contaminated land auditors provide an important function by conducting environmental audits and preparing environmental reports.  Some of the legislative changes impact on the declaration that is required to accompany an auditor’s certificate, and the ability to place additional conditions on an auditor’s certification.  DESI will also be able to amend the conditions of an auditor’s approval.  These changes aim to provide greater clarity regarding offences related to an auditor making fake or misleading declarations, reports, or certifications.  Other notable changes include the grounds for including land on the environmental management register, as well as the creation of a new process allowing voluntary inclusion of land on the relevant register. 

Key takeaways

These amendments aim to achieve the overall principles of prevention of environmental harm and adherence with the general environmental duty.

The introduction of a duty to restore signifies a proactive stance towards environmental remediation.  However, a significant challenge will be determining who is deemed responsible to restore in each circumstance.  This is particularly difficult, for example, in situations of water quality or discharge events.  Balance must also be struck between the duty to restore and the potential financial burden on operators.  Regardless, operators will need to ensure that their systems, processes and budgets anticipate the need to monitor and restore environmental harm.

The broadening of notification triggers may burden landowners, occupiers and auditors with increased reporting obligations, potentially leading to regulatory complexities and compliance challenges.

If you would like to learn more about the changes, contact our Planning and Environment Team, or register your interest for a seminar or webinar on the Powers and Penalties Act changes here.

For related articles on the recent changes under the Powers and Penalties Act, see below:

Our previous articles on environmental regulation include: