Why is making an Enduring Power of Attorney important
Please Click on any question to see the answer
Q1. When
will the Act commence?
A
The Act will commence on 1
December 2006.
Q2.
What is the definition of “contaminated”?
A
Section 4 of the Act defines
contaminated in the following way: “…in relation to land,
water or a site, means having a substance present…at above
background concentrations that presents, or has the
potential to present, a risk of harm to human health, the
environment or any environmental value.”
Q3.
Are there any exemptions to what may be classed as
“contamination”?
A
Existence of algal
bloom caused by accumulation of nutrients in surface
waters.
Substance that is part
of a building or other structure, or wholly contained
within a building which otherwise may cause
contamination e.g. asbestos walls or fence whilst still
intact
Small/domestic septic
tanks and substances present due to their correct use
Salinity that is
natural or due to practices such as land clearing,
agriculture or irrigation
Q4.
What is
the definition of “site”?
A
Section 3 of the Act defines
site as “…an area of land [soil] and includes – underground
water under that land; and surface water on that land.”
Q5.
What activities have the potential to cause contamination?
A
Fuel storage
Chemical manufacturing
Power stations
Gasworks
Agricultural use
Landfill sites
Large industrial
facilities
Q6.
What are some potential signs of contamination?
A
The existence of
surface chemicals found in the soil during site works or
oily surface waters on or near a site on which works are
being undertaken
High numbers of animal
deaths, such as birds and fish
Evidence on a site of
a former landfill or area of waste disposal or
historical such as rubbish emerging from the ground
Q7.
Who must report a site?
A
Section 11(4) of the act
provides that known or suspected contaminated sites must be
reported to the Department of Environment and Conservation
by the:
Owner
Occupier (which
includes a Tenant)
Person who knows or
suspects they may have caused the contamination
Contaminated Sites
Auditor who has been appointed to provide a report/work
on a site for purposes of the Act
Known or suspected
contaminated sites may be reported to the Department of
Environment and Conservation by any other people (DEC).
Q8.
What is the time frame for the reporting of a site?
A
People with a duty to report
must report:
A known or
contaminated site within 21 days of first knowledge –
section 11(3)(a) of the Act
A suspected
contaminated site as soon as practicable – section
11(3)(b) of the Act
BUT A six month period of
grace applies after 1 December 2006 during which penalties
for not reporting in these timeframes will not apply –
section 11(6) of the Act
Q9.
What are the penalties for not reporting a site?
A
Penalties payable by owner,
occupier, contaminator and Contaminated Sites Auditor for
not reporting sites is $250,000 for individuals and
$1,250,000 for bodies corporate.
Q10.
Which sites should be reported?
A
Site which the person
reporting knows or suspects are contaminated – s11(1) of
the Act
Q11.
What is the process for reporting a site?
A
Complete Form 1 in
Schedule of the Contaminated Sites Regulations 2006
(“the Regulations”)
There are no
requirements for a person reporting to undertake
investigations before reporting
Q12.
What are the different classifications that may be given to
a site (Schedule 1)?
A
The Chief Executive Officer of
the Department of Environment and Conservation (”DEC”) is
responsible for classifying a site. The different
classifications that may be given to a site are listed at
Schedule 1 of the Act and are as follows:
“Report not
substantiated” means that a report under section 11 or
12 of the Act provides no ground to indicate possible
contamination of the site;
“Possibly contaminated
– investigation required” means that there are grounds
to indicate possible contamination of the site;
“Not contaminated –
unrestricted use” means that following investigation of
a site it is found not to be contaminated;
“Contaminated –
restricted use” means that the site is contaminated but
suitable for restricted use;
"Remediated for
restricted use” means that the site is contaminated but
has been remediated so that it is suitable for
restricted use;
“Contamination –
remediation required” means that the site is
contaminated and remediation is required; and
“Decontaminated” means
that the site has been remediated and is suitable for
all uses.
Q13.
What happens after classification of a site?
A
Section 15 of the Act provides
that within 10 days of classifying a site the DEC is
required to notify the following people of the
classification:
Owner
Occupier
Relevant public
authorities (e.g. Department of Planning and
Infrastructure, Western Australian Planning Commission)
Anyone else who the
DEC believes there is a reason to notify eg mortgagees
on title
Classification generally
applies to whole land parcel.
Q14.
Who is responsible for remediation?
A
Only sites classified as
“Contaminated – remediation required” are required to be
cleaned up.
The hierarchy of responsibility for remediation is:
Polluter
Owner
Lender
(“mortgagee in possession”)
State
The decision as to who is
responsible for the remediation of a particular site is
determined by the Contaminated Sites Committee.
Q15.
What is the contaminated sites database?
A
The Contaminated Sites
Database is a database located on the DEC website and
provides free information on the sites that have been
classified as “contaminated – restricted use”, “Contaminated
– remediation required” and “remediated for restricted use”.
Sites classified as “report not substantiated”, “possibly
contaminated – investigation required”, “decontaminated” and
“not contaminated – unrestricted use” cannot be located on
the contaminated sites database. Instead they are registered
on the Reported Site Register. Members of the public will
need to contact the DEC and pay a fee to obtain this
information. The fees payable for this information will
depend on the level of information required.
Firstly, for a fee of $30.00 a Basic Summary of Records can
be purchased from the DEC. This summary contains information
such as:
the address and
location details of the site;
the classification
allocated to the site and the reason for the
classification;
whether a memorial has
been placed on the Certificate of Title;
the restrictions
placed on the use of the site if classified as
“contaminated – restricted use” or “remediated for
restricted use”.
Secondly, for a fee of $300
a Detailed Summary of Records can be purchased from the DEC.
In addition to the information found in the Basic Summary of
Records, this summary also contains:
the certificate of
contamination audit completed in respect of the land;
the author date and
title of any management plans submitted to the DEC CEO.
It is the duty of the owner of
land to disclose information to a potential purchaser,
mortgagee or lessee for sites classified as:
Contaminated –
restricted use
Contaminated –
remediation required
Remediated for
restricted use
Disclosure is required at
least 14 days before transaction is completed
Q17.
Memorial on title
A
Section 58 of the Act provides
that a Memorial is to be lodged on title for sites
classified as:
Contaminated –
remediation required
Contaminated –
restricted use
Remediated for
restricted use
Possibly contaminated
– investigation required
If a Memorial is registered
because of site classification the following may not occur
without taking into account the advice of the DEC CEO as to
the suitability of the proposal:
WAPC may not approve
subdivision or amalgamation of land; and
Responsible authority
may not grant approval under a scheme for any proposed
development.
Section 14 of the Act
provides that the DEC has 45 days to investigate the site.
If there are circumstances that make it difficult to do so
within this time the DEC CEO will decide what further time
is required. The Memorial will remain on title until it is
no longer classified as above.
Removal of memorial
Section 58(3) of the Act provides that if after
investigation and/or remediation the site is no longer
classified as contaminated the DEC CEO is to give notice to
the Registrar of Titles that the memorial is to be withdrawn
and the Registrar is to register the withdrawal of the
Memorial and remove the charge from the land.
Q18.
statements (section 64)- protection for the innocent
landowner
A
An owner of land may make a
disclosure statement to the Contaminated Sites Committee in
the prescribed form with respect to contamination of that
land.
Exemption certificates (section 65)
On receiving a disclosure statement the Contaminated Sites
Committee is to give an exemption certificate in respect of
the land subject to the disclosure statement if the
Committee believe that:
the land is
contaminated;
the
contamination was not caused or contributed to by that
person;
the person
did not fail to prevent that contamination and far as it
was reasonably in control of the person to prevent the
contamination; and
the land was
contaminated when purchased but the owner was not aware
or did not suspect the contamination.
The holder of the exemption
certificate will not be responsible for remediation.
Exemption certificate is
transferable to subsequent owners of the land if the
Committee agrees to this.
Q19.
Disclosure to potential purchasers
A
The owner of a property that
has been classified as “contaminated – remediation
required”, “contaminated – restricted use” or “remediated
for restricted use” must provide written disclosure of the
contamination to any potential new owner, mortgagee or
lessee of the property at least 14 days before the
transaction is completed.
“The information you obtain at this site
is not, nor is it intended to be, legal advice.
You should consult a lawyer for individual advice regarding
your own situation.”
