Changing landfill practices Practices associated with owning and operating landfills have changed considerably over time. Landfills were often developed on what was thought at the time to be undesirable land – swampy low-lying land and creeks: 20 mosquito breeding swamp and low-lying areas, totalling more than 260 acres, were being reclaimed at low cost to ratepayers, the Lord Mayor (Ald Chandler) said yesterday. The land could be used for recreational areas, sporting grounds, riverside drives and industrial buildings. It was being filled in with refuse under the current cleaning contract and was covered with ash from the New Farm power house.1 By modern standards,2 little or no thought was given to any environmental values these creeks or wetlands may have had including the level and type of waste dumped.3 However the filling of these sites was done with the best engineering practices at the time. That said, during the 1950s, 60s and 70s, waste was generally less toxic4 than it is today because it was primarily comprised of organic waste and contained less chemicals and plastics.5 Of course, prior to the 1950s, there were resource constraints due to two World Wars and the Great Depression. Glass bottles were refillable until the 1960s. So, the more serious environmental issues normally associated with landfills are a relatively recent phenomenon. In Queensland, landfills were historically licensed by the State Government under the Health Act 1957 and the Refuse Management Regulations 1983 which were public health based legislation rather than being based on environmental concerns. Decommissioning and legacy environmental management issues were largely ignored. Current legislative requirements for landfills include environmental management measures such as clay lining, installation of landfill gas wells, collection and disposal of leachate and the restriction of some wastes (regulated wastes) as well as conditions relating to decommissioning and legacy land use. It is not uncommon for land formerly used as landfill to be converted for residential uses as well as recreational or sporting parks.
What are the legal risks? This paper considers the range of ongoing legal risks associated with Queensland decommissioned landfill sites. These risks vary depending upon the age of the landfill. Most legal risk is now associated, not with the very old and usually smaller landfills, but with the immediate predecessors to modern landfills. That said, even with the modern landfills, the operators must constantly be searching for new ways to minimise public health and safety issues and environmental concerns as waste again transforms, bringing with it new issues. There may need to be greater focus on minimising and recycling waste and incorporating some responsibilities for waste collection into development conditions. Changing waste generation The legal risk associated with the very old and usually smaller former landfills where chemicals were not commonly dumped, is minimal. In the Brisbane City Council area alone, there are approximately 1506 former landfills which are now primarily leased or used as parks or sporting fields.7 As many of these landfills are
in low-lying “swampy” areas which are prone to localised flooding, it is a sensible move by many councils to simply use them as parks and sporting fields because commercial or residential uses on flood prone land have their own risks. There is a risk of real harm on the older landfill sites (which may give rise to a legal liability), if subsidence occurs from the deterioration of large items such as rainwater tanks, fridges and even car bodies. In an extreme case, a sinkhole could develop, posing a risk of serious personal harm to an unaware future user of the site. Further, over time, waste could migrate to the surface and be exposed but the risk of that waste being dangerous (say, a syringe, or something similar), would appear small. These risks have arisen in the context of communities’ waste generation patterns changing and the lag period for management to keep up with growing knowledge of environmental risks of operating landfills. During the 1960s and 70s, conditions attached to the landfill approvals did not require: • clay lining; • capping; • limited tip face exposure; • diversion of clean stormwater from mixing with the contaminated stormwater from the landfill; and • the monitoring and management of landfill gas let alone any consideration of the site’s geographical characteristics in terms of whether it would minimise the offsite release of landfill gas or leachate migrating downstream in the future. From a potential harm perspective an issue arises about whether contaminants are continuing to migrate off-site and whether any damage is suffered by adjacent land owners and occupiers. If so, what are the possible legal consequences for the owner or occupier of the decommissioned landfill? What legal problems do owners of former Qld landfills face? If harm results from the former landfill, owners of it may face legal action from three fronts: Offences or breach of statutory duty: a) under the Environmental Protection Act 1994 (Qld) (EPA) for committing an offence or breach of statutory duty; and Lack of Disclosure: b) under ss 420 and 421 of the EPA upon selling or leasing contaminated land without proper notice and potentially under the Australian Consumer Law8 (ACL) for misleading and deceptive conduct where appropriate information to the other party has not been given in circumstances where the purchaser or lessee had a reasonable expectation of disclosure; Tort: c) and in tort; for negligence or nuisance. Environmental Protection Ac t 1994 Duty to notify Sections 320 – 320G9 of the EPA impose a duty on a person while carrying out an activity (the primary activity), to notify the administering authority no later than 24 hours after unlawful material environmental or serious environmental harm is caused or threatened by the activity or any other activity being carried out in association (associated activity) with it. These sections broadly impose responsibilities on employees and agents to notify their employers and principals respectively if they become aware of the harm or threat of harm.10 In some circumstances, the owner and occupier of “affected land” must also be notified. “Affected land” is a defined term and would include adjoining land if material or serious environmental harm was caused or threatened to it. A breach of these provisions is an offence.11 Sections 320-320G are not expressed by reference to the occupation of land but rather to the carrying out of an “activity”. When operational, the “landfill” would undoubtedly be the primary activity. But where a former landfill is used subsequently for, say, residential or recreational purposes, it is not. Further, it is also difficult to suggest that residential or recreational purposes are associated activities as there is no interconnection between the former landfill and the current use. That primary activity has ceased. Accordingly, the requirements to notify about environmental harm are not triggered for harm which is not related to the carrying out of residential or recreational activities. There is a proviso: an activity that mobilises previously secured contaminants from a former landfill may be a “primary activity” for the purposes of the EPA and reporting may be required. These circumstances could arise during the redevelopment of a site, perhaps during bulk earthworks or the drilling of footings. Further, the approval authorising the operation of the landfill should be considered. If a condition to the approval requires on-going rehabilitation or remediation of the site and the condition continues to apply after the authority has ended or ceased to have effect then it is arguable that in that circumstance the landfill activity is still being carried out and any other activities on the land may be an associated activity. Any site management plan issued under the contaminated land provisions of the EPA should also be considered. Monitoring and reporting conditions are common (but usually not within a 24 hour period as required by ss 320B-D; more likely to be as “reasonably practicable”). Even if any other uses on the land may be associated to the primary activity, the term “activity” requires further consideration. There is little guidance provided by State, interstate, Commonwealth or overseas authorities on what is an activity. Under s 23 of the Landlord & Tenant Act 1954 (UK), an “activity” was found not to strictly require a “trade, profession or employment” but must be at least something bearing a relationship to the conceptions contained in that word. The use of a shop as a dumping ground for waste from other shops was not an “activity” for the purpose of that section.12 Under other English legislation requiring an "activity carried out by a body of persons", the words being contained in s 25(1) of the Redundancy Payments Act 1965 (UK), was held that mere ownership of premises did not suffice as an activity.13
This may have some bearing on whether the notification provisions are relevant to certain conduct. These provisions are in contrast to the more general requirement under s 372 of the EPA for local governments to report if hazardous contaminants (including from the former landfills) migrate onto other land. Should this occur, that local government may be best served by having a suitably qualified expert assess the contaminants to determine whether they meet the definition under the Act. Contaminated land The duty to notify in relation to contaminated land is found in ss 371 and 372 of the EPA. Section 371, relevantly, provides that if the owner or occupier of land becomes aware: (1) a notifiable activity is being carried out on the land, the owner or occupier must, within 22 business days after becoming aware the activity is being carried out, give notice to the administering authority in the approved form; (2) the land has been, or is being, contaminated by a contaminant the owner or occupier knows is a hazardous contaminant, the owner or occupier must, within 22 business days after becoming aware the land has been, or is being, contaminated, give notice to the administering authority in the approved form; (3) However, the owner or occupier of land does not commit an offence against subsection (1) or (2) if the administering authority has already been given notice under the subsection about the activity or contamination.
Under s 372, there is a similar obligation cast upon the relevant local government in relation to all land within its jurisdictional area who is aware of either a notifiable activity (that has been carried out or is a current activity) or land that has been contaminated by a hazardous contaminant to notify the Department. It is an offence under both sections not to provide the required notification. “Notifiable activities” are listed in sch 3 of the EPA and includes battery manufacture, asphalt or bitumen manufacture, coal fired power station and landfills. Accordingly, unless it has already been reported, land that has been formerly used as a landfill should be notified to the Department. For most local governments this information was given to the Department upon commencement of these provisions, almost 20 years ago. In circumstances where the local government knows that contaminants may have migrated off its sites, then it may be caught by the meaning of ‘hazardous contaminant’. ‘Hazardous contaminant’ is defined to mean: “a contaminant that if improperly treated, stored, disposed of or otherwise managed, is likely to cause serious or material environmental harm because of— a) its quantity, concentration, acute or chronic toxic effects, carcinogenicity, teratogenicity, mutagenicity, corrosiveness, explosiveness, radioactivity or flammability; or
b) its physical, chemical or infectious characteristics.” Material environmental harm, relevantly, means harm that is not trivial or negligible in nature, extent or context or causes between $5,000 and $50,000 in actual or potential damage to property or the costs associated with preventing or minimising the harm and rehabilitating the environment would be between $5,000 and $50,000.14 Serious environmental harm is, relevantly, environmental harm that is irreversible, of high impact or widespread or caused to an area of high conservation value or special significance or causes loss/damage or involved mitigation/remediation costs of above $50,000.15 The definition of ‘material environmental harm’ sets quite a low bar, particularly when considered in light of the kinds of costs which are generally associated with the remediation of land or groundwater contamination. Where there is concern about off-site migration or contaminants, experts with appropriate qualifications in land or groundwater contamination should advise the local government owners or occupiers of former landfills whether there are any chemicals that would constitute a ‘hazardous contaminant’ for the purposes of the EPA definition (ie. that, in the event it was improperly treated, stored, disposed of or managed, it would be likely to cause at least material environmental harm because of one of the characteristics listed above). If a local government becomes aware that a hazardous contaminant has, in fact, been released into the soil or groundwater and migrated onto adjacent land to its decommissioned landfill, then the Department of Environment and Heritage must be notified, within 22 business days (contrast this with the immediate notification period under ss 320B-D), under s 372 of the EPA. The obligations under s 371 apply to land owned or occupied by third parties where the contaminants have migrated onto or into land owned or occupied by that third party. The reality (depending of course on the age of the former landfill) is, however, that if leachate or landfill gas were going to migrate, it has long since done so and in some cases, continued emitting gas for up to 40 years.16 Statute of limitations would generally apply to criminal prosecutions17 and may even apply to civil litigation for negligence. Information provided to the Department under either s 371 or s 372 will allow the Department to make a decision as to whether the land should be entered on the environmental land or contaminated land register. There are a number of procedures that may be followed and implemented between the giving of notification about possible contamination and the making by the Department of a decision about whether the land is contaminated or not. There are a number of scenarios that may ultimately follow such a decision: 1. the land is not contaminated land and is removed from the register; 2. the land is contaminated land but is suitable to be used for particular purposes under a site management plan. The land therefore stays on the environmental management register;18 3. the land is found to be contaminated land and remediation needs to be carried out in order to prevent serious environmental harm to a person, animal or another part of the environment. The land is listed on the contaminated land register; or 4. the land is contaminated land but no action is necessary. The land remains listed on the environmental management register. Under the Sustainable Planning Regulation 2009,19 the State is a concurrence agency for development applications concerning land that is placed on the register. It is common for development approvals for a material change of use to attach conditions dealing with monitoring and reporting. Such development approvals should be considered in this context. Interestingly, the Sustainable Planning Regulation has recently been amended on July 420 such that developers of contaminated land in Queensland now need to obtain a compliance permit from an approved contaminated land auditor if their project involves a sensitive land use or for a commercial purpose involving an accessible underground facility including a basement car park, workshop or office. Sensitive land uses are defined as having the same meaning as that in State Planning Policy. It includes, amongst many others, a childcare centre, community care centre, dwelling house, hospital, retirement facility and tourist park.
Other types of development must follow revised guidelines for managing site contamination 21. Site management plans are dealt with in ch 8 pt 8 div 5 of the EPA. Section 401 provides that a site management plan may be used to manage the environmental harm that may be caused by the hazardous contaminant contaminating the land by applying conditions to the use or development of, or activities carried out on, the land. The scope of a site management plan is, accordingly, reasonably broad and it can provide some protection to the landowner and occupier of the land. If a plan is in place and is being complied with, no action can be taken under divs 3-4 with respect to the land. That said, it is difficult to see how a site management plan could properly manage a passive use of a former landfill site, such as, a recreational park. Further, when dealing with an operational landfill, most local governments will be certified under the ISO 14001 which certification addresses various aspects of environmental management. This certification is sought and complied with for a number of reasons including for insurance and requirements to tender for waste management contracts. Requirements under site management plans often duplicate ISO certification requirements. Moreover, the more detailed a site management plan, the more likely that compliance with it will be assessed on the auditing system and records rather than a site based inspection of the landfill. It is suggested that site management plans could be written to dovetail or use the documentation of the ISO certification thus reducing green tape. Negligence and misleading and deceptive conduct Negligence, generally An action for negligence may arise if three elements are satisfied: a) The existence of a duty of care; b) Breach of that duty; and c) Damage as a consequence of the breach of duty. A duty of care is a legal obligation to avoid causing harm, and arises where harm is foreseeable if due care is not taken. This arises from the “neighbour principle”, which imposes on all persons a duty to take reasonable care to avoid causing reasonably foreseeable harm to other persons.20 For negligence actions, where such a relationship exists, the parties are considered “neighbours” to one another. The general standard of care is normally one of reasonable care, calculated objectively according to what a reasonable person would do in the defendant’s particular circumstances, taking into account the magnitude of the risk, the degree of probability of its occurrence, along with the expense, difficulty and inconvenience in taking alleviating action and any other conflicting responsibilities the defendant may have.21 Accordingly, negligence claims are likely to be unsuccessful when dealing with former landfills which were established and operated when the knowledge of the adverse contamination effects were not understood and appreciated. Of course, those landfills that were operated when knowledge of the effects of landfills were becoming known but not fully appreciated may give rise to a successful suit, provided the action is not statute barred.22 That said, if there is a former landfill which is the source of continuing leachate and landfill gases, then the current owner should take action to minimise and remediate any continuing contamination, otherwise an omission to remediate may well ground a negligence or nuisance suit. Remediation is never cheap and it may be a commercial matter for the owners of the former landfill to compensate purchasers of the adjacent land or to even attempt to buy the adjacent land. Development approvals Councils are potentially liable in the tort of negligence for a wide range of conduct, but usually for operational as opposed to policy decisions.23 A development approval, to use words which Mason J used in Sutherland Council v. Heyman, is "the product of administrative direction, expert or professional opinion, (and) technical standards".24 It is an operational decision and, accordingly, Councils may be sued for granting a development approval without exercising due care in making the decision. In Alec Finlayson Pty Ltd v Armidale City Council, the Council was successfully sued in negligence because the Council approved development applications for residential subdivisions, without taking any steps or imposing any conditions in respect of chemical contamination in the soil from a known prior industrial use.25 There was evidence that the purchasers of the land specifically relied on the advice and approval by Council. So far as relevant knowledge was concerned, the Council was in a position of dominating advantage compared with the plaintiff. Council was also under a statutory obligation under the Environment Planning and Assessment Act 1979 (NSW) s 90(1)(g), to take into consideration whether the land was unsuitable for the intended use. The Judge held that powerful circumstantial evidence showed that the Council, through its officers, was well aware of the contamination of the subject land, and that those officers simply failed to apply their minds to the question whether the contamination ought to be investigated, in order to ascertain its extent and to determine whether it required remediation. Time and again, the Council had received complaints about pollutants emanating from the site. At meetings of the Council, and of its committees, reports had been presented detailing the consequences for the land and waters, up to a kilometre or a kilometre and a half away, of the spread of creosote and copper chrome arsenate from the treatment works. The Court held that it was not believable that the Council's officers thought the pollution only began outside the boundary of the land. The Court held that unfortunately the Council officers gave no consideration to its implications in relation to the site itself, since, over a period of many years, they did nothing effective about its implications for the adjoining land, the residential environment, and nearby creeks.
Accordingly, local governments must consider all relevant matters when deciding a development application. It is prudent for Councils to have registers where matters, not necessarily relating to planning matters, are easily accessible to development assessment managers. When making such decisions, it is prudent for the decision maker to call in all files, including environmental and compliance files, to check relevant information. This may also serve as a reminder to ensure there is regular discussion between various divisions of Council about matters of interest. Developers, particularly large scale developers, regularly conduct due diligence searches when considering the purchase of land. Depending on the circumstances of the case, it may be prudent to give specific instructions to those persons carrying out the due diligence investigation to confirm whether there are, or have been, environmental issues relating to nearby land, particularly if the land was once a waterway, low-lying or swampy and was “filled” by the local authority. Lack of disclosure A negligence action may also arise from lack of disclosure, namely, where the vendor or lessor knows the land is contaminated but does not fully inform the purchaser or lessee, which purchaser or lessee can be classified as ‘vulnerable’. Accordingly, a claim for misleading and deceptive conduct under the ACL and for negligence may well raise similar issues. Section 52(1) of the Trade Practices Act 1974 (Cth) provided: “A corporation shall not in trade or commerce engage in conduct that is misleading or deceptive or is likely to mislead or deceive.”26 Section 18 of the ACL now replaces s52 of the Trade Practices Act 1974 (Cth), and is not limited to conduct by corporations. Silence may constitute conduct which is misleading or deceptive. If the circumstances are such that a person is entitled to believe that a relevant matter affecting him or her would, if it existed, be communicated, then the failure to communicate it may constitute conduct which is misleading or deceptive because the person who ultimately may act to his or her detriment is entitled to infer from the silence that no danger or detriment existed.27 The significance of silence always falls to be considered in the context in which it occurs. That context may or may not include facts giving rise to a reasonable expectation, in the circumstances of the case for if particular matters exist they will be disclosed.28 Whether section 18 of the ACL will apply to a local government will be dependent upon the individual facts and circumstances of the matter. The relevant conduct must be a part of the entity’s trading or commercial activities, and not merely incidental to them.29 The test to be applied in deciding whether a corporation is a “trading or financial corporation”30 is whether trade in goods, services or finance is the “predominant and characteristic activity” of the corporation. Many activities of local government are directed to public benefit objectives and lack the essential quality of trade. Further, the scale of the trade or financial services is not significant compared to the primary function of the local government. Therefore, a local government often is not in trade or commerce at the relevant time and the ACL will not be applicable. In the case of Noor Al Houda Islamic College Pty Limited v Bankstown Airport Limited claims of negligence and misleading and deceptive conduct were used to argue for the disclosure of environmental reports that the site was contaminated.32 Noor Al Houda Islamic College (the College) leased a site from Federal Airports Corporation (FAC). (Bankstown Airport Limited was the successor in law to the Federal Airports Corporation in relation to the Bankstown Airport). During negotiations for the lease an Airport employee comprehensively pointed out that there were some difficulties with the site from the point of view of setting up a school. It was a noisy site and there were no services available. The Court found that Bankstown Airport did not positively represent that the site was suitable for a school. Crucially, at the time the parties were negotiating the lease, Bankstown Airport (but not the individual negotiating the deed) was aware that the site was contaminated but did not inform the College of the contamination. There were clauses in the lease that stated the College had to make its own enquiries as to the suitability of the site for the College and the Airport made no representations as to the suitability of the site. There was also an exclusion clause in the lease which stated that Bankstown Airport was not liable for any loss or injury to the College unless the loss or injury was caused by Bankstown Airport’s negligence or default. The Court held that:
a) A lessor owed a duty of care to its lessee in addition to any duties which existed in the contract between the parties. The key fact which lead the Court to conclude that a duty of care existed was the vulnerability of the lessee; b) The College was vulnerable because there was no reason for it to contemplate the possibility of contamination. In fact, the very candour of the Airport employee about the disadvantages of the site increased the misleading effect of the failure to mention the possible risk of contamination. That being the case, there was no reason the College would make such enquiries. In this regard, the Bankstown Airport had a significant level of control over the site not only as landlord but as planning authority which in turn meant it had greater knowledge of the site than the College; c) The lessor had breached that duty by withholding information relevant to the suitability of the site for the lessee’s proposed use of the site for a school. The “information” was a report identifying risks that contamination on the site presented a risk to human health and that further investigations should be undertaken. d) Failure to disclose that the site was contaminated was misleading and deceptive even in the absence of any positive representations as to the suitability of the site because the Airport was aware the site would be used for a sensitive purpose, namely, a school. These circumstances gave rise to the reasonable expectation that the College should have been told about the risk of contamination. e) The nondisclosure does not have to be deliberate or intentional. It is, therefore, important that entities (corporations or persons) aware of contaminated land, whether or not activities conducted on the land gave rise to the contamination must be upfront when dealing with land transactions, otherwise they may find themselves successfully sued by an incoming purchaser or lessee. A local government may not be subject to the ACL in this respect but it may still be held liable in negligence. Civil Liability Act – barrier to civil action? Importantly, in Queensland, the Civil Liability Act 2003 (Qld) (CLA) has modified the common law general standard of care in negligence matters so as to somewhat limit the circumstances in which public authorities, including local governments,33 will owe, and will breach, a duty of care. Section 36 of the CLA, prevents an action in breach of statutory duty being brought against a public authority, based on a breach which occurred after the commencement of that Act, unless: “the act or omission was in the circumstances so unreasonable that no public or other authority having the functions of the authority in question could properly consider the act or omission to be a reasonable exercise of its functions.” This is a very high standard to achieve.
However, the somewhat analogous NSW case of Gales Holdings Pty Ltd v Tweed Shire Council, which considered an equivalent provision to section 36 of the CLA, shows the section does not provide local governments with “immunity” from liability.34 a) In Gales, the Council, in the course of constructing drains, caused untreated water to pond on nearby undeveloped private land. b) In 2003 (two years before the proceedings commenced), the plaintiff informed the Council of the ponding. Council, in response, developed a solution, but chose not to put that solution into effect. The Council sought to justify this position on the basis that because the plaintiff had no intention of developing the land, there was no interference in the plaintiff’s enjoyment of the land.35 c) The Court held that no reasonable Council would have acted in the manner of the Council in that case. In particular, the Court considered that no reasonable Council would have: i. acted in the manner that the Council acted, after being notified of the nuisance; ii. developed a solution to the problem, but not implemented it or taken other remedial steps; or iii. caused the ponding, without any offer of compensation.36 Commentators have expressed some concern that, in practice, section 36 of the CLA may not be interpreted by Courts to apply as strongly as the provision’s language would
suggest.37 Accordingly, and in light of the result in Gales, there is a risk that public authorities such as local governments may be exposed to a finding that it breached a duty of care, despite s 36 of the CLA and may be liable to pay damages. It is, therefore, important that local governments stay abreast of evolving scientific knowledge in the waste minimisation and waste management fields and where appropriate implement that knowledge into its practices. Nuisance The key difference between an action in negligence and an action in nuisance is that nuisance looks to the harmful result of an activity rather than to the kind of conduct causing the harm. Another key difference between nuisance and negligence is that “unreasonable risk” in negligence involves the idea of foreseeable harm to which a reasonable person would not expose others. In nuisance, the duty not to cause harm is not necessarily discharged by exercising reasonable care or even all possible care but it is an important factor and one which may be given much weight. 39 To constitute a legal private nuisance, the annoyance must be substantial and unreasonable.40 Reasonableness is viewed from the perspective of both the plaintiff and the defendant and the different views are then balanced. When carrying out this balancing exercise, a number of factors are considered in accordance with traditional property rights. Little attention is paid to criteria such as to the cost or resource efficiency or
larger considerations of zoning or social welfare41 but the character of the neighbourhood is a relevant factor. The gravity of the harm suffered by the plaintiff is clearly important. Trifling inconvenience will not normally ground a nuisance action. In order to be actionable, the interference must materially inconvenience the ordinary use and comfort of the plaintiff’s land. The inconvenience may be property damage. That said, the property damage cannot be a diminished market value because the land is publicly known to be in the vicinity of lots affected by the presence of landfill gas.42 Operational landfills There were an estimated 918 landfills operated by the waste management services businesses and organisations (including general government) in 2009–10.43 For example, in 2006-07 it was reported that 8, 081, 000 tonnes of waste were generated in Queensland, 3, 779, 000 tonnes were recycled and 4, 302, 000 tonnes were disposed of in landfill.44 The majority of waste that is not recycled or re-used in Australia is disposed of in the nation's landfills notwithstanding that landfill now sits towards the bottom rung of the waste hierarchy as prescribed by the Waste Reduction and Recycling Act 2011 (Qld) and Queensland’s Waste Reduction and Recycling Strategy 2010-2020. This is because landfills are by far the cheapest option available and while we have numerous very large old coal mines located close to capital cities then this will continue to be the case. One reason why coal mines/sand mines/clay quarries are used for landfills is that they were originally exempt from development approval conditions and some environmental conditions as the rehabilitation of the site was deemed an “as of right” use. Filling these mines and quarries with waste “rehabilitated” the land and produced revenue for the landowner. Waste levies can change the ‘playing field’ for waste disposal, however, as seen recently in Queensland, levies are not a popular option.45 During 2009–10, there were 21.6 million tonnes of waste received at landfills, with 7.4 million tonnes (34%) coming from the domestic and municipal waste stream, 6.7 million tonnes (31%) from the commercial and industrial waste stream and 5.6 million tonnes (26%) from the construction and demolition waste stream.46 Of the domestic and municipal waste stream, over 40%, is composed of putrescible organic material including green organic and food waste.47 But there is a growing component of e-waste.48 Conclusion: Ow ners/occupiers of former landfills Notification Owners or occupiers of former landfills, if they have not already done so, should notify the administering authority when they become aware the land is contaminated by hazardous contaminants. Those proponents will be well served to first have suitably qualified experts assess the contaminant/s having regard to the contaminant’s toxicity, concentration and whether it is likely to cause material environmental or serious environmental harm. If the owner or occupier of a former landfill is a local government, it is obliged to notify the Department if the land has previously been used as a landfill. It is expected that in most circumstances, former landfill sites will have already been reported. Local governments are also obliged to give notice to the Department if it becomes aware that any land in its local government area is contaminated by a hazardous contaminant. Notice must be given within 22 business days of becoming aware of the hazardous contamination. This is a significantly greater time period than that required under the provisions concerning the duty to notify of material or serious environmental harm. Owners or occupiers of former landfills where there is no “activity” being conducted are not required under ss320-320G to notify the administering authority or owners of adjacent land of actual or potential material environmental or serious environmental harm. Adopt world best practice What is clear is that in order to avoid negligence or nuisance claims, entities operating landfills must keep abreast of new technical developments and be extremely cautious about not adapting to advances in best practice. “Best practice” may be the avoidance of waste or the recycling of certain waste. It may also be appropriate to limit the type of waste that will be accepted (or to charge an additional fee for some waste but such schemes must be carefully weighed because it may encourage illegal dumping of waste often in relatively pristine but out of the way areas, like bushland and national parks or may even encourage waste transporters to dispose of their waste at cheaper refuse facilities)49 and to deal with organic waste separately. Subject to the domestic communities’ needs, it appears more likely that having at least 3 bin types (general, recycling and green and possibly compost) is appropriate to better deal with particular by-products of the waste and that recycling will be forced to play a more important role in the future. It may even be appropriate for Councils to have “in-town” collection sites for certain types of domestically used higher risk products such as batteries and electronic waste (e-waste) including mobile phones and other smaller electronic waste. Such collection sites would preferably be locations where residents routinely pass, making it more likely they will remember to deposit such waste. Town planning considerations Local governments could also consider conditioning development approvals50 for shopping centres where electronic goods, batteries and the like are sold so that there is a collection point for customers for smaller items of e-waste, batteries and even, say, used smoke detectors. Local governments must also be cautious about allowing residential development adjacent to landfills and have conservative buffer zones (which is reflected in the actual planning scheme)51 which may take the form of a progression from industrial to commercial to lowdensity residential. Planning matters associated with landfills include: a) odour; b) noise produced by machinery and
possibly by native birds attracted to the landfill; c) dust; d) vermin; e) vehicle movements, namely garbage trucks; f) windblown litter whereby rubbish, generally plastic bags and paper is blown away before it can be covered; g) leachate; and h) landfill gas. Whilst it may be a double edged sword in some respects, it is important for local governments and land protection entities to focus on restoring disturbed creeks etc to preserve and possibly to improve the ecological function of these former landfills. Of course, the more pristine an environment, damage to it increases qualitatively. Conclusion: Ow ners of adjacent land to landfills (third parties) Potential purchasers of land adjacent to former landfill should conduct thorough due diligence checks about the former landfills including when the landfill use ceased, the length of time the landfill was conducted and the type and nature of waste. This will inform the potential purchaser of the risk of contamination in the form of leachate and landfill gas migrating onto the land they are interested in. If the land is purchased with the intention of developing and on-selling the land, it is important that the contracts are reviewed for clauses relating to notification if the vendor is aware of circumstances or events that might lead to classification as contaminated land under the EPA. Such conditions are common. Whilst there is no case law as to what the level of risk that would be required to trigger the application of “contamination” contract provisions, given the seriousness of contamination and sensibilities of residential purchasers to contamination matters, it is likely that those provisions would be triggered. Vendors and lessors should fully and frankly disclose any land contamination, otherwise the non-disclosure may ground claims in negligence or misleading and deceptive conduct and/or lead to a termination of contract.