The recent Tasmanian tribunal decision in WM Stuart v. Environmental Protection Authority [2012] TASRMPAT 110 (16 July 2012):
- highlights the relatively low threshold that the environmental protection regulator is required to establish to issue an investigation notice for contamination, and
- affirmed the principle in Premier Building and Consultant Pty Ltd v Spotless Group Limited & Ors [2007] VSC 377 that responsibility for contamination does not require a positive act or some form of intention.
Facts
Mr Stuart was the former owner of a property which was leased to a tenant who operated a service station. Contamination was located on the property that was consistent with fuel leaking from underground tanks on the property. While Mr Stuart had no part in the day to day operation of the service station, the lease provided that Mr Stuart was responsible for the maintenance of the tanks.
The Tasmanian Environmental Protection Agency (EPA) issued an Investigation Notice for contamination on Mr Stuart who subsequently challenged the issue of such Investigation Notice in the Tasmanian Resource Management and Planning Appeal Tribunal on the basis that the EPA did not have the power to issue the Investigation Notice on him and also that he was not responsible for the contamination.
Outcome
The Tribunal noted that the issue of an Investigation Notice does not by itself mean the recipient has caused the contamination. The Tribunal concluded that, provided the EPA has a "reasonable belief" Mr Stuart is "likely to be... partly responsible for causing or possibly causing" the contamination, the issue of the Investigation Notice is valid.
Implications for you
As the position in Tasmanian law regarding the issue of Investigation Notices is echoed in most other states, land owners and tenants should be aware it doesn't take much at all for the environmental protection regulator to have grounds to issue an Investigation Notice. An Investigation Notice, while not being a determination of guilt in itself, may involve costs, potential interruption to business and/or damage to a business's reputation. It might also make a land owner or tenant liable for damages and invoke indemnities, depending on the terms of their lease or other contractual agreement.
This case is a timely reminder that land owners and tenants should be familiar with all their obligations in the lease, or otherwise in respect of contamination, and take all steps to ensure compliance – especially when a failure to act when required may be all it takes to be responsible for contamination.
As per the Victorian Supreme Court findings in the Spotless case, "A person who just stood by and watched it happen might also be a person who committed an act which allows the pollution to occur".
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
