South Australian Numbered Acts South Australian Numbered ActsAfter Part 10 insert:
Part 10A—Special provisions and enforcement powers for site
contamination
Division 1—Interpretation and application
103A—Interpretation
In this Part—
"occupier", in relation to land—
(a) has
the meaning assigned to the term by section 3; and
(b) if,
in accordance with the regulations, a person of a particular kind is to be
taken to be an occupier of the land in the circumstances of the
case—includes a person of that kind,
and "occupy" land has a corresponding meaning.
103B—Application of Part to site contamination
This Part applies to site contamination at a site whether the chemical
substances were first present there, or the environmental harm resulted,
before or after the commencement of this Part or this Act.
Division 2—Appropriate persons to be issued with orders and liability
for site contamination
103C—General provisions as to appropriate persons
(1) Subject to this
Part, the appropriate person to be issued with a site contamination assessment
order or a site remediation order in respect of a site under Division 3
is—
(a) the
person who caused the site contamination at the site; or
(b) if
it is not practicable to issue the order to that person, the owner of the site
provided that—
(i)
before the person acquired the site, the person knew, or
ought reasonably to have been aware, that chemical substances were present, or
likely to be present, on or below the surface of the site such as to require,
or be likely to require, remediation; or
(ii)
—
(A) before the person acquired the site,
the person knew, or ought reasonably to have been aware, that the activity
that caused the site contamination at the site had been carried on at the
site, or while the person was the owner, the person knew, or ought reasonably
to have been aware, that the activity that caused the site contamination at
the site was being carried on at the site; and
(B) the activity is an activity of a kind
prescribed by the regulations as a potentially contaminating activity.
(2) However, if the
basis for issuing a site contamination assessment order is only the
Authority's suspicion under section 103H(1)(b) as to the existence of
site contamination at the site, subsection (1) of this section does not
apply and the appropriate person to be issued with the order is the owner of
the site.
(3) For the purposes
of subsection (1), it is not practicable to issue a site contamination
assessment order or a site remediation order to a person if the person—
(a) has
died or, in the case of a body corporate, ceased to exist; or
(b)
cannot, after reasonable inquiry, be identified or located; or
(c)
would, in the opinion of the Authority, for any reason, be unable to carry
out, or meet the costs and expenses of, the action required or authorised
under the order.
103D—Causing site contamination
(1) For the purposes
of this Act, a person is to be taken to have
"caused" site contamination if the person was the occupier of land when there
was an activity at the land that caused or contributed to the site
contamination.
(2) If site
contamination would not have resulted at a site but for a change of use of a
kind prescribed by regulation (whether the change occurred before or after the
commencement of this Part or this Act), the person who brought about the
change of use of the site is to be taken to have
"caused" the site contamination for the purposes of this Act.
(3) The operation of
subsection (2) in a particular case is not to be taken to exclude the
possibility of another person or persons also having caused the site
contamination under subsection (1).
(4) For the purposes
of subsection (2), a person does not bring about a change of use of a
site because the person was a relevant authority that granted a consent or
approval in respect of the site under the Development Act 1993 .
103E—Liability for site contamination subject to certain agreements
(1) If—
(a) site
contamination exists at a site; and
(b) land
that is all or portion of the site has been sold or transferred (whether
before or after the commencement of this Part or this Act) subject to an
agreement in writing under which the purchaser or transferee will assume
liability for all or a specified part of the site contamination at the site,
the purchaser or transferee is to be taken to have assumed the vendor's or
transferor's liability for the site contamination in accordance with the
agreement and this Act applies as if the purchaser or transferee (and not the
vendor or transferor) had caused the site contamination or, as the case may
be, the specified part of the site contamination.
(2)
Subsection (1) does not apply to an agreement—
(a)
unless, in the case of an agreement entered into after the commencement of
this Part—
(i)
the person has first given the purchaser or transferee a
notice in a form approved by the Authority for the purposes of this section
setting out the legal effect of the agreement under this section; and
(ii)
a copy of the agreement is lodged with the Authority; or
(b) if
the Environment Resources and Development Court determines, on application by
the Authority, that the purchaser or transferee did not acquire the land in a
genuine arms length transaction.
103F—Order may be issued to one or more appropriate persons
If, in the application of this Division, there are 2 or more persons to whom
it is practicable to issue an order under Division 3 as appropriate persons,
the Authority may determine that—
(a) any
1 of the persons is the appropriate person to be issued with the order; or
(b) 2 or
more of the persons are the appropriate persons to be issued with the order
(with the effect that the persons are jointly and severally liable to comply
with the requirements of the order).
103G—Court may order that director of body is appropriate person in
certain circumstances
(1) If—
(a) a
body corporate has been issued with a site contamination assessment order or a
site remediation order in respect of a site, or grounds exist for the issuing
of any such order to a body corporate; and
(b)
there is reason to believe that the body corporate is being or has been wound
up, stripped of assets or subjected to other action as part of a scheme—
(i)
to avoid meeting its obligations under or in connection
with a site contamination assessment order or a site remediation order in
respect of the site; or
(ii)
to avoid its being issued with such an order,
the Environment Resources and Development Court may, on application by the
Authority, make an order that a person who was, during the period in which it
appears to the Court that the scheme was principally devised, a director or
otherwise concerned in the management of the body corporate, or of a holding
company of the body corporate, is an appropriate person to be issued with a
site contamination assessment order or a site remediation order, or both, in
respect of the site.
(2) Without limiting
the effect of subsection (1), there will be reason for such a
belief—
(a)
if—
(i)
the body corporate is being or has been wound up; and
(ii)
the body corporate has carried out 1 or more
transactions—
(A) such as to give the liquidator of the
body corporate a right to recover cash under section 567 of the
Corporations Act 2001 of the Commonwealth; or
(B) rendered voidable by section 588FE
of the Corporations Act 2001 of the Commonwealth; or
(C) by which the body corporate incurred a
debt in relation to which a person contravened section 588G of the
Corporations Act 2001 of the Commonwealth; and
(iii)
there was, at the time or times when the body corporate
entered those transactions or a substantial portion of them, reason to believe
that site contamination may exist at the site; or
(b)
if—
(i)
a holding company of the body corporate has contravened
section 588V of the Corporations Act 2001 of the Commonwealth in relation
to the body corporate; and
(ii)
there was, at the time of the contravention, reason to
believe that site contamination may exist at the site; or
(c)
if—
(i)
the site has been transferred to a related body corporate
(the
"transferee"); and
(ii)
a reasonable person could have anticipated that the
transferee would be unable to pay its debts if it took steps to remediate the
site (to the extent that a reasonable person would have expected would be
necessary); and
(iii)
there was, at the time of the transfer or when the body
corporate entered the transactions for the transfer, or a substantial portion
of them, reason to believe that site contamination may exist at the site.
(3) The Court must not
make an order under this section if the person against whom the order would be
made satisfies the Court that—
(a) the
person had no knowledge, actual, imputed or constructive, of the scheme or any
element of the scheme; or
(b) the
person was not in a position to influence the conduct of the body corporate in
relation to that scheme; or
(c) the
person, if in such a position, used all due diligence to prevent the pursuit
of the scheme by the body corporate.
(4) The Court may make
an order under this section despite the fact that the body corporate took
steps to remediate the site.
Division 3—Orders and other action to deal with site contamination
103H—Site contamination assessment orders
(1) If—
(a) the
Authority is satisfied that site contamination exists at a site; or
(b) the
Authority suspects that site contamination exists at a site because a
potentially contaminating activity of a kind prescribed by regulation has
taken place there,
the Authority may issue a site contamination assessment order in respect of
the site to an appropriate person.
(2) A site
contamination assessment order—
(a) must
be in the form of a written notice served on the person to whom it is issued;
and
(b) must
specify the person to whom it is issued (whether by name or a description
sufficient to identify the person); and
(c) must
specify the site; and
(d) must
include requirements for assessments to be carried out of the nature and
extent of any site contamination on or below the surface of the site and,
subject to subsection (3), if the Authority so determines, on or below
the surface of land in the vicinity of the site; and
(e) must
include a requirement for a written report of the assessments to be submitted
to the Authority in a specified form within a specified period; and
(f) may
include a requirement that a person with specified qualifications be appointed
or engaged to carry out the assessments required by the order or to prepare
the written report or the assessments; and
(g) may
include a requirement for a site contamination audit to be carried out, in
accordance with the guidelines issued from time to time by the Authority, and
a site contamination audit report to be submitted to the Authority within a
specified period; and
(h) may
include a requirement for specified consultations to be carried out with
owners or occupiers of land in the vicinity of the site; and
(i)
must state that the person may, within 14 days, appeal to
the Environment, Resources and Development Court against the order.
(3) If the order is
issued to an appropriate person as an owner of the site as distinct from a
person who caused the site contamination, the order must be limited in its
application to site contamination on or below the surface of the site.
(4) Where a proposed
site contamination assessment order or a proposed variation of such an order
would require the undertaking of an activity for which a permit would, but for
section 129 of the Natural Resources Management Act 2004 , be
required under that Act, the Authority must, before issuing or varying the
order, give notice of the proposal to the authority under the
Natural Resources Management Act 2004 to whom an application for a permit
for the activity would otherwise have to be made inviting the authority to
make written submission in relation to the proposal within a period specified
in the notice.
(5) The Authority may,
by written notice served on a person to whom a site contamination assessment
order has been issued, vary or revoke the order.
(6) A person to whom a
site contamination assessment order is issued must comply with the order.
Penalty:
If the offender is a body corporate—$120 000.
If the offender is a natural person—Division 1 fine.
(7) It is not an
excuse for a person to refuse or fail to provide information in response to a
requirement imposed by a site contamination assessment order on the ground
that to do so might tend to incriminate the person or make the person liable
to a penalty.
(8) If compliance by a
prescribed person with a requirement to provide information imposed by a site
contamination assessment order might tend to incriminate the person or make
the person liable to a penalty, then the information given in compliance with
the requirement is not admissible in evidence against the person in
proceedings for an offence or for the imposition of a penalty (other than
proceedings in respect of the making of a false or misleading statement).
103I—Voluntary site contamination assessment proposals
(1) The Authority may
agree not to issue a site contamination assessment order to a person in
relation to known or suspected site contamination if the person undertakes to
carry out an assessment in accordance with an approved voluntary site
contamination assessment proposal.
(2) An agreement under
subsection (1) must be in writing and copies of the agreement must be
served on the parties to the agreement.
(3) The Authority may,
on application by a person, approve a voluntary site contamination assessment
proposal if satisfied that the terms of the proposal are appropriate.
(4) The Authority
must, if satisfied that the assessment has been carried out and completed in
accordance with the approved proposal, notify the holder of the approval in
writing that it is so satisfied.
(5) If a notification
is given to a person under subsection (4), the person may apply to the
Court under Part 11 for an order for payment of the whole or a portion of
the costs and expenses of the assessment against others as if the person had
carried out the assessment in compliance with the requirements of a site
contamination assessment order.
103J—Site remediation orders
(1) If—
(a) the
Authority is satisfied that site contamination exists at a site; and
(b) the
Authority considers that remediation of the site is required, taking into
account current or proposed land uses,
the Authority may issue a site remediation order in respect of the site to an
appropriate person.
(2) A site remediation
order—
(a) must
be in the form of a written notice served on the person to whom it is issued;
and
(b) must
specify the person to whom it is issued (whether by name or a description
sufficient to identify the person); and
(c) must
specify the site; and
(d) must
give particulars of the site contamination; and
(e) may
include requirements for the person to whom it is issued to remediate the site
within a specified period; and
(f) may
include requirements for—
(i)
preparing, in accordance with specified requirements and
to the satisfaction of the Authority, a plan of remediation; and
(ii)
complying with such a proposal to the satisfaction of the
Authority; and
(g) may
include authorisation for the site to be remediated, or any other action to be
taken in respect of its remediation, on the Authority's behalf by authorised
officers or other persons authorised by the Authority; and
(h) may
include a requirement for a written report of the remediation to be submitted
to the Authority in a specified form within a specified period; and
(i)
may include a requirement that a person with specified
qualifications be appointed or engaged to—
(i)
prepare a plan of remediation under paragraph (f);
or
(ii)
to prepare a written report of the remediation under
paragraph (h); or
(iii)
to carry out the remediation or other activities
associated with the remediation; and
(j) may
include requirements for a site contamination audit to be carried out, in
accordance with the guidelines issued from time to time by the Authority, and
a site contamination audit report to be submitted to the Authority within a
specified period; and
(k) may
include a requirement for specified consultations to be carried out with
owners or occupiers of land in the vicinity of the site; and
(l) must
state that the person may, within 14 days, appeal to the Environment,
Resources and Development Court against the order.
(3) If the order is
issued to an appropriate person as an owner of the site as distinct from a
person who caused the site contamination, the order must be limited in its
application to site contamination on or below the surface of the site.
(4) Where a proposed
site remediation order (except an emergency site remediation order) or a
proposed variation of a site remediation order would require the undertaking
of an activity for which a permit would, but for section 129 of the
Natural Resources Management Act 2004 , be required under that Act, the
Authority must, before issuing or varying the order, give notice of the
proposal to the authority under the Natural Resources Management
Act 2004 to whom an application for a permit for the activity would
otherwise have to be made inviting the authority to make written submission in
relation to the proposal within a period specified in the notice.
(5) An authorised
officer may, if of the opinion that urgent action is required for the
remediation of a site, issue a site remediation order imposing requirements of
a kind referred to in subsection (2)(e) as reasonably required for the
remediation of the site (an "emergency site remediation order ).
(6) An emergency site
remediation order may be issued orally, but, in that event, the person to whom
the order is issued must be advised forthwith of the person's right to appeal
to the Environment, Resources and Development Court against the order.
(7) Where an emergency
site remediation order is issued to a person, the order will cease to have
effect on the expiration of 72 hours from the time of its issuing unless
confirmed by a written site remediation order issued by the Authority and
served on the person.
(8) The Authority or
an authorised officer may, if of the opinion that it is reasonably necessary
to do so in the circumstances, include in an emergency or other site
remediation order a requirement for an act or omission that might otherwise
constitute a contravention of this Act and, in that event, a person incurs no
criminal liability under this Act for compliance with the requirement.
(9) The Authority may,
by written notice served on a person to whom a site remediation order has been
issued, vary or revoke the order.
(10) Where, in
accordance with subsection (2)(g), a site remediation order is issued
authorising a person other than an authorised officer to take action, the
following provisions apply:
(a) the
Authority must issue the person with an instrument of authority;
(b) the
person may exercise such powers of an authorised officer as are reasonably
required for the purpose of taking action under that subsection;
(c) the
provisions of this Act apply in relation to the exercise of such powers by the
person in the same way as in relation to an authorised officer;
(d) the
person must produce the instrument of authority for the inspection of any
person in relation to whom the person intends to exercise powers of an
authorised officer.
(11) A person to whom
a site remediation order is issued must comply with the order.
Penalty:
If the offender is a body corporate—$120 000.
If the offender is a natural person—Division 1 fine.
(12) It is not an
excuse for a person to refuse or fail to provide information in response to a
requirement imposed by a site remediation order on the ground that to do so
might tend to incriminate the person or make the person liable to a penalty.
(13) If compliance by
a prescribed person with a requirement to provide information imposed by a
site remediation order might tend to incriminate the person or make the person
liable to a penalty, then the information given in compliance with the
requirement is not admissible in evidence against the person in proceedings
for an offence or for the imposition of a penalty (other than proceedings in
respect of the making of a false or misleading statement).
103K—Voluntary site remediation proposals
(1) The Authority may
agree not to issue a site remediation order to a person in relation to site
contamination if the person undertakes to carry out remediation in accordance
with an approved voluntary site remediation proposal.
(2) An agreement under
subsection (1) must be in writing and copies of the agreement must be
served on the parties to the agreement.
(3) The Authority may,
on application by a person, approve a voluntary site remediation proposal if
satisfied that the terms of the proposal are appropriate.
(4) The Authority
must, if satisfied that the remediation has been carried out and completed in
accordance with the approved proposal, notify the holder of the approval in
writing that it is so satisfied.
(5) If a notification
is given to a person under subsection (4), the person may apply to the
Court under Part 11 for an order for payment of the whole or a portion of
the costs and expenses of the remediation against others as if the person had
carried out the remediation in compliance with the requirements of a site
remediation order.
103L—Entry onto land by person to whom order is issued
(1) A site
contamination assessment order or a site remediation order does not confer on
the person to whom it is issued a power to enter land of which that person is
not an occupier, to remain on such land or to do anything on such land,
without the permission of—
(a) the
occupier of the land; and
(b) the
owner of the land (unless the order has been issued to the owner or the
occupier is the owner).
(2) However—
(a) if
permission is withheld or withdrawn by the owner, the Authority may—
(i)
revoke, suspend or vary the order; and
(ii)
if the owner has been warned of the possible consequences
of withholding or withdrawing permission, issue a site contamination
assessment order or a site remediation order in respect of the land to the
owner as if the owner were the appropriate person;
(b) if
permission is withheld or withdrawn by the occupier, the Authority may—
(i)
revoke, suspend or vary the order; and
(ii)
if the occupier has been warned of the possible
consequences of withholding or withdrawing permission, issue a site
contamination assessment order or a site remediation order in respect of the
land to the occupier as if the occupier were the appropriate person.
(3) If a site
remediation order is issued under subsection (2), this Act applies as if
no person other than the person issued with the order has liability for site
contamination described in the order in respect of the land.
103M—Liability for property damage etc caused by person entering land
(1) This section
applies to a person who enters or does anything on land in order to carry
out—
(a) the
requirements of a site contamination assessment order or site remediation
order; or
(b) an
approved voluntary site contamination assessment proposal or approved
voluntary site remediation proposal.
(2) A person to whom
this section applies is liable, except as prescribed by the regulations, to
the occupier of the land for damage to property of the occupier, or other loss
suffered by the occupier, as a result of the entry or other actions (including
loss suffered by the occupier because of the interruption of the occupier's
business on the land by such entry or actions).
(3) A person to whom
this section applies is liable, except as prescribed by the regulations, to
the owner of the land for damage to land or other property of the owner, or
other loss suffered by the owner, as a result of the entry or other actions.
(4) A person who
incurs a liability under this section must—
(a) take
all reasonable steps to minimise and make good the damage or loss; and
(b) to
the extent that it is not practicable for the person to make good the damage
or loss—compensate the person suffering the damage or loss.
(5) Proceedings for
the recovery of compensation under this section must be brought by application
to the Environment, Resources and Development Court.
103N—Special management areas
(1) If the Authority
has reason to believe that site contamination of a particular kind exists in a
wide area, or in numerous areas, as a result of the same activity or proximate
or related activities, the Authority may, by notice in the Gazette—
(a)
declare that the area or areas described in the proclamation may be affected
by site contamination described in the proclamation; and
(b)
declare the area or areas to be a special management area or special
management areas for the purposes of this section.
(2) On the making of a
declaration under this section, the Authority is to conduct a program in which
it—
(a)
publicises the matters to which the declaration relates; and
(b)
establishes consultative processes involving itself and other relevant public
authorities, industries, businesses, residents and others involved, or with a
relevant interest, in the matter; and
(c)
endeavours to bring about the making of 1 or more environment performance
agreements or other voluntary arrangements under which the parties to the
agreements or arrangements are to carry out, or contribute to or assist in the
carrying out of—
(i)
assessments of—
(A) the nature and extent of site
contamination within the special management area or areas; and
(B) the remediation that is necessary; and
(ii)
the preparation of plans of remediation; and
(iii)
the remediation of the sites that are affected by the
relevant site contamination.
(3) The Authority may,
by notice in the Gazette, vary or revoke a notice under this section.
103O—Registration of site contamination assessment orders or site
remediation orders in relation to land
(1) Where a site
contamination assessment order or site remediation order has been issued under
this Division, the Authority may do either or both of the following:
(a) if
the order was issued to an owner or occupier of the site—apply to the
Registrar-General for registration of the order in relation to the site;
(b)
apply to the Registrar-General for registration of the order in relation to
land owned by a person to whom the order was issued.
(2) An application
under this section must—
(a)
describe the land to which it relates; and
(b) do
either or both of the following as the case may require:
(i)
state that the registration of the order in relation to
the land will, by virtue of subsection (4), result in the order becoming
binding on each owner from time to time of the land;
(ii)
state that the registration of the order in relation to
the land is to operate as the basis for a charge on land owned by the person
to whom the order was issued, as provided by this Division, securing payment
to the Authority of costs and expenses incurred in taking action in the event
of non-compliance with requirements of the order or in taking action in
pursuance of the order.
(3) The
Registrar-General must, on application by the Authority under
subsection (1) and lodgement of a copy of the site contamination
assessment order or site remediation order, register the order by making such
entries in any register book, memorial or other book or record in the Lands
Titles Registration Office or in the General Registry Office as he or she
thinks fit.
(4) Where a site
contamination assessment order or a site remediation order (other than an
order authorising remediation of a site by authorised officers or other
persons authorised by the Authority) was issued to an owner or occupier of the
site and is registered under this section in relation to the site—
(a) the
order is binding on each owner from time to time of the site, and this
Division applies as if the order had been issued to each owner; and
(b) a
person who ceases to be an owner of the site must, as soon as reasonably
practicable, notify the Authority in writing of the name and address of the
new owner.
(5) Where a site
contamination assessment order or site remediation order is registered under
this section in relation to a site, the Authority must, as soon as reasonably
practicable, notify, in writing, each owner of the site of the registration
and of the obligations of owners under subsection (4).
(6) A person who fails
to comply with subsection (4)(b) is guilty of an offence.
Penalty: Division 6 fine.
(7) The
Registrar-General must, on application by the Authority, cancel the
registration of a site contamination assessment order or site remediation
order in relation to land and make such endorsements to that effect in the
appropriate register book, memorial or other book or record in respect of the
land as he or she thinks fit.
(8) The Authority may,
if it thinks fit, apply to the Registrar-General for cancellation of the
registration of a site contamination assessment order or site remediation
order in relation to land, and must do so—
(a) on
revocation of the order; or
(b) on
full compliance with the requirements of the order; or
(c) if
the Authority takes action under this Division to carry out the requirements
of the order—on payment to the Authority of the amount recoverable by
the Authority under this Division in relation to the action so taken.
103P—Notation of site contamination audit report in relation to land
(1) This section
applies to a site contamination audit report relating to land whether or not
required under this or any other Act.
(2) The
Registrar-General must, on application by the Authority, include in any
register book, memorial or other book or record in the Lands Titles
Registration Office or in the General Registry Office a notation that a site
contamination audit report has been prepared in respect of the land and is to
be found in the register kept by the Authority under section 109 of this Act.
(3) The
Registrar-General must, on application by the Authority, remove a notation
made in relation to land under this section.
103Q—Action on non-compliance with site contamination assessment order
or site remediation order
(1) If—
(a) the
requirements of a site contamination assessment order are not complied with;
or
(b) a
site remediation order requires remediation of the site by the person to whom
it is issued and the requirements of the order are not complied with,
the Authority may take any action required by the order.
(2) Any action to be
taken by the Authority under subsection (1) may be taken on the
Authority's behalf by authorised officers or by other persons authorised by
the Authority for the purpose.
(3) Where a person
other than an authorised officer is authorised to take action under
subsection (1), the following provisions apply:
(a) the
Authority must issue the person with an instrument of authority;
(b) the
person may exercise such powers of an authorised officer as are reasonably
required for the purpose of taking action under that subsection;
(c) the
provisions of this Act apply in relation to the exercise of such powers by the
person in the same way as in relation to an authorised officer;
(d) the
person must produce the instrument of authority for the inspection of any
person in relation to whom the person intends to exercise powers of an
authorised officer.
103R—Recovery of costs and expenses incurred by Authority
(1) Where action has
been taken by the Authority either on non-compliance with the requirements of
a site contamination assessment order or a site remediation order, or in
pursuance of a site remediation order, the Authority may recover the
reasonable costs and expenses incurred by the Authority in taking that action
as a debt from the person to whom the order was issued.
(2) Subject to
subsection (3), where—
(a) a
site contamination assessment order or site remediation order has been
registered in relation to a site under section 103O; or
(b) the
registration of a site contamination assessment order or site remediation
order in relation to land has been cancelled under that section,
the Authority may recover, as a debt from the person to whom the order was
issued, an amount prescribed by regulation in respect of the registration or
cancellation (as the case may be).
(3) No amount is
recoverable by the Authority under subsection (2) in relation to a site
contamination assessment order or site remediation order that has been
revoked.
(4) Where an amount is
recoverable from a person by the Authority under this section—
(a) the
Authority may, by notice in writing to the person, fix a period, being not
less than 28 days from the date of the notice, within which the amount must be
paid by the person, and, if the amount is not paid by the person within that
period, the person is liable to pay interest charged at the prescribed rate
per annum on the amount unpaid; and
(b) the
amount together with any interest charge so payable is until paid a charge in
favour of the Authority on any land owned by the person in relation to which
the site contamination assessment order or site remediation order is
registered under this Division.
(5) A charge imposed
on land by this section has priority over—
(a) any
prior charge imposed on the land (whether or not registered) that operates in
favour of a person who is an associate of the owner of the land; and
(b) any
other charge on the land other than a charge registered prior to registration
of the site contamination assessment order or site remediation order in
relation to the land.
103S—Prohibition or restriction on taking water affected by site
contamination
(1) If the Authority
is satisfied that—
(a)
there is site contamination that affects or threatens water; and
(b)
action is necessary under this section to prevent actual or potential harm to
human health or safety,
the Authority may, by notice in the Gazette, prohibit or restrict the taking
of the water.
(2) A notice under
this section must—
(a)
specify the water to which it relates; and
(b) give
particulars of the site contamination affecting the water.
(3) A person must not
contravene a notice under this section.
Penalty: Division 5 fine.
(4) The Authority may,
by notice in the Gazette, vary or revoke a notice under this section.
Division 4—Site contamination auditors and audits
103T—Application of Division
This Division applies to—
(a) a
site contamination audit; or
(b) a
site contamination audit report; or
(c) a
site contamination audit statement,
whether or not required under this or any other Act.
103U—Requirement for auditors to be accredited
A person must not carry out a site contamination audit unless—
(a) the
person is a site contamination auditor and personally carries out or directly
supervises the work involved in the audit; or
(b) the
person carries out the audit through the instrumentality of a site
contamination auditor who personally carries out or directly supervises the
work involved in the audit.
Penalty: Division 4 fine.
103V—Accreditation of site contamination auditors
(1) Only a natural
person may be granted accreditation as a site contamination auditor.
(2) The regulations
may provide for matters relating to the accreditation of site contamination
auditors, including (without limitation)—
(a) the
grant or renewal of accreditation by the Authority; and
(b)
referral of applications to an accreditation committee established by the
Authority; and
(c)
powers of the Authority or accreditation committee to examine applicants or
require the provision of information by applicants; and
(d)
application fees and accreditation fees; and
(e) the
imposition or variation of conditions of accreditation; and
(f) the
term for which accreditation may be granted or renewed; and
(g)
powers of the Authority to suspend or cancel accreditation and disqualify
persons from obtaining accreditation; and
(h) the
grounds for refusing the grant or renewal of accreditation or for suspending
or cancelling accreditation or disqualifying persons from obtaining
accreditation; and
(i)
appeals to the Administrative and Disciplinary Division
of the District Court against decisions of the Authority relating to
accreditation.
(3) The regulations
may provide that persons of a specified class are to be taken to be accredited
under this Division subject to compliance with requirements specified in the
regulations.
103W—Illegal holding out as site contamination auditor
(1) A person must not
hold himself or herself out as a site contamination auditor unless the person
is accredited under this Division as a site contamination auditor.
Penalty: Division 4 fine.
(2) A person must not
hold out another as a site contamination auditor unless the other person is
accredited under this Division as a site contamination auditor.
Penalty: Division 4 fine.
103X—Conflict of interest and honesty
(1) This section
applies to—
(a) a
site contamination auditor; or
(b) a
person who carries out a site contamination audit on behalf of another through
the instrumentality of a site contamination auditor.
(2) A person to whom
this section applies must not, unless authorised by the Authority in writing,
carry out a site contamination audit of a site—
(a) if
the person is an associate of another person by whom any part of the site is
owned or occupied; or
(b) if
the person has a direct or indirect pecuniary or personal interest in any part
of the site or any activity that has taken place or is to take place at the
site or part of the site; or
(c) if
the person has been involved in, or is an associate of another person who has
been involved in, assessment or remediation of site contamination at the site;
or
(d) on
the instructions of, or under a contract with, a site contamination consultant
who has been involved in the assessment of site contamination at the site.
Penalty: Division 6 fine or Division 6 imprisonment.
(3) A person to whom
this section applies must not, in or in relation to a site contamination
audit, site contamination audit report or site contamination audit statement,
make a statement that the person knows to be false or misleading in a material
particular (whether by reason of the inclusion or omission of any particular).
Penalty:
If the offender is a body corporate—Division 1 fine.
If the offender is a natural person—Division 3 fine or
Division 6 imprisonment.
103Y—Annual returns and notification of change of address etc
(1) A site
contamination auditor must, during the prescribed period each year, furnish
the Authority with a return relating to site contamination audits for which
the auditor is or was the responsible auditor, listing each such audit
commenced, in progress, completed or terminated before completion during the
period commencing—
(a) in
the case of an auditor in his or her first year of accreditation—on the
day on which accreditation was granted; or
(b) in
any other case—on the first day of the prescribed period in the
preceding year.
Penalty: Division 5 fine.
(2) A return under
this section must be in the form prescribed by regulation.
(3) A site
contamination auditor must, within 14 days after any change of address or any
other change relating to his or her activities as a site contamination auditor
that affects the accuracy of particulars last furnished to the Authority,
notify the Authority of the change.
Penalty: Division 5 fine.
(4) In this
section—
"prescribed period" means the period commencing 8 weeks before, and
ending 4 weeks before, the anniversary of the day on which the auditor's
accreditation was granted or last renewed;
"responsible auditor"—a site contamination auditor is the
responsible auditor for a site contamination audit if the work involved in the
audit is carried out personally by, or under the direct supervision of, the
auditor.
103Z—Requirements relating to site contamination audits
(1) A site
contamination auditor must, within 14 days after the commencement of a
site contamination audit for which the auditor is the responsible auditor,
notify the Authority in writing of the person who commissioned the audit and
the location of the land to which the audit is to relate.
Penalty: Division 5 fine.
(2) A site
contamination auditor must, within 14 days after the termination before
completion of a site contamination audit for which the auditor was the
responsible auditor, notify the Authority in writing of the termination and
the reasons for the termination.
Penalty: Division 5 fine.
(3) A notification
under subsection (1) or (2) must be in the form prescribed by regulation.
(4) A site
contamination auditor must, on the completion of each site contamination audit
for which the auditor is the responsible auditor—
(a)
provide a site contamination audit report to the person who commissioned the
audit; and
(b) at
the same time, provide—
(i)
a site contamination audit report to the Authority; and
(ii)
a site contamination audit statement to the council for
the area in which the land to which the audit relates is situated and any
prescribed body.
Penalty: Division 5 fine.
(5) In this
section—
"responsible auditor"—a site contamination auditor is the
responsible auditor for a site contamination audit if the work involved in the
audit is carried out personally by, or under the direct supervision of, the
auditor.
Division 5—Reports by site contamination auditors and consultants
103ZA—Reports by site contamination auditors and consultants
A site contamination auditor or site contamination consultant must, in any
written report that the auditor or consultant prepares in relation to a site,
clearly qualify any statement of the auditor's or consultant's opinion as to
the existence of site contamination at the site by specifying the land uses
that were taken into account in forming that opinion.
Penalty: Division 5 fine.
103ZB—Provision of false or misleading information
A person must not make a statement that the person knows to be false or
misleading in a material particular (whether by reason of the inclusion or
omission of any particular) in any information furnished to a site
contamination auditor or site contamination consultant that might be relied on
by the auditor or consultant in preparing a report relating to site
contamination (whether or not required under this or any other Act).
Penalty:
If the offender is a body corporate—Division 1 fine.
If the offender is a natural person—Division 3 fine.