Invitations to comment on the Environmental Protection and Other Legislation Bill 2014 are open until 29 September 2014. Of interest to local governments may be the proposed changes to the contaminated land provisions, particularly how those changes vastly enlarge the notification obligations of local governments.
THE ENVIRONMENTAL PROTECTION ACT: THE DUTY TO NOTIFY
The Environmental Protection Act 1994 (EPA) is Queensland’s primary environmental protection statute.
- a “general environmental duty” which must be complied with;
- a duty to notify the administering authority (usually the Department of Environment and Heritage Protection (DEHP), but possibly the local government, if the environmentally relevant activity (ERA) is devolved) if a person becomes aware whilst carrying out a primary activity (or associated activity) that unlawful serious or material environmental harm is caused or threatened (ss320A-E); and
- a duty to notify DEHP under ss371 and 372 relating to contaminated land.
Proposed changes to the duty to notify, in effect, relocate and combine the duty to notify about contaminated land into the more general duty to notify while also enlarging that duty. The time in which to notify has been significantly reduced. The reduction in time and broadening of responsibilities may prove to be not only quite onerous to local governments but may significantly increase notifications to the DEHP.
Currently, local governments are obliged to notify DEHP when:
- a person carrying out a primary activity (or any other activity being carried out in association with it);
- becomes aware;
- that an event has happened;
- that threatens or causes serious or material environmental harm;
- because of the person’s or someone else’s act or omissions in carrying out the primary activity or associated activity.
Notification must be in writing and given no later than 24 hours after becoming aware of the event. Agents and employees also have certain duties to notify their principal or employer. Notification to occupiers or owners of affected land is also required. Public notice may even be necessary.
Under the proposed changes the general duty to notify has been enlarged to capture when a person becomes aware:
- that a notifiable activity is being carried out on land; or
- of the happening of an event, or a change in the condition of contaminated land, that is causing, or is reasonably likely to cause, serious or material environmental harm.
More particularly, local governments must also, upon becoming aware that a notifiable activity has been, or is being carried out on land in the local government area, give notice to the DEHP within 20 business days. This is consistent with the current duty found in s372 of the EPA but the time for notification has been reduced from 22 business days to 20.
Of interest is the obligation on Councils to notify DEHP no later than 24 hours of becoming aware of:
- the happening of an event in the local government area; or
- a change in the condition of contaminated land in the local government area;
that is causing, or is reasonably likely to cause, serious or material environmental harm.
WHAT IS THE HAPPENING OF AN “EVENT”?
The word “event” is not defined in the EPA and nor is it a legal term or term of art. Accordingly, the word will take its ordinary dictionary meaning.
The Macquarie Dictionary defines “event” in very broad terms as “anything that happens or is regarded as happening; an occurrence, especially one of some importance”. This is consistent with the EP Act provisions requiring that the “event” be one that causes or is reasonably likely to cause serious or material environmental harm.
Whilst not a formal aid to statutory interpretation, Appendix B of DEHP’s Guideline on the duty to notify of environmental harm provides some clarification of when DEHP, at least, considers that an event may occur. The Appendix contains four examples of events:
- a sewage treatment plant failing during a major flood and releasing effluent;
- the driver of a truck carrying regulated waste arriving at their destination and becoming aware that a substantial volume of waste had leaked along the way (the example states that the relevant “event” is “the leakage of the material”)
- an explosion and fire at a chemical factory, resulting in a release of noxious odours, fumes or gases;
- A hose refuelling a ship falling loose and pumping fuel directly into a waterway.
We suggest that a significant rain event, that has the potential to mobilise contaminants, could be an example of an “event” for the purposes of the EPA. However, even “ordinary” rain could potentially constitute an event if it is reasonably likely to result in a risk of serious or material environmental harm. Other such “events” could be a heatwave if it were to significantly expand landfill gas on a former landfill and an electrical storm where the barometric pressure drops suddenly which might in turn cause landfill gas to act differently.
These examples illustrate a major difficulty with the new provisions. The trigger to notify is not knowledge of harm or the potential to cause harm; rather, the trigger is knowledge of the “event” which may cause it. This is particularly problematic because the “event” no longer has to occur in the context of the carrying out of an activity, in which a proponent would ordinarily be vigilant about possible environmental consequences on its site. The scope of the new provision means that local governments, perhaps unreasonably, must now consider all possible outcomes of otherwise unknown “events” in its local government area; not merely on land owned or occupied by them. Accordingly, a trigger might be an otherwise innocuous “event” but one which is reasonably likely to cause, serious or material environmental harm.
For example, a relatively small rain event could conceivably mobilise contaminants underground. A local government might not previously have had any concern over such an “event” but now must be alive to its impact on all land in its local government area, including sites upon which notifiable activities were once conducted. Under this new provision, a local government would be obliged to turn its mind to the potential consequences of any “event” and, if necessary, notify the DEHP. A conservative approach could see the number of notifications increase significantly.
While the amendments do not require the event or change in condition to relate to the carrying out of an activity, the existing offence provisions all assume, with one exception that an activity is being carried out. That exception is section 320C which applies to a person who is “not carrying out the primary activity during the person’s employment or engagement...” However, given that even this provision refers to the carrying out of an activity (and is in a subdivision headed: “Duty of persons carrying out an activity) it follows that section 320C would not be triggered if an activity was not being carried out.
WHAT IS A CHANGE IN THE CONDITION OF CONTAMINATED LAND?
This phrase does not have a direct analogue in the EPA as presently drafted. It would seem that a change in the physical or chemical composition of the contaminated land is the target of this provision and would capture situations such as contaminants:
- migrating off-site;
- entering top soil layers and becoming exposed;
- leaking into an aquifer and contaminating ground water; and
- becoming concentrated.
Often, this will be as a result of a happening of an event, for example, a significant rain event or the carrying out of operational works on the site. However, at least with this limb of the notification requirement, the requisite awareness infers some prior knowledge of the land and its condition. Local governments could not be expected to have an intimate knowledge of all contaminated land within its boundary and therefore be aware of any change. In any event, a change in condition of its contaminated land may require baseline analysis that would not necessarily be available or required.
Other issues may also arise. Taking landfill as an example, the chemical composition in legacy landfills will change over time because of natural degradation. There is no guidance regarding what time period the “change” is to be assessed.
It would be beneficial if the Department nominates a threshold or guidance as to what constitutes a change in condition because otherwise everyday climatic conditions may result in a significant change, particularly, when dealing with former landfills.
Another key issue for local government is what constitutes “awareness” by a Council of such an event or change.
“Aware” is defined as “cognisant or conscious (of); informed: aware of danger [watchful]”. In Deming, the Court said when interpreting a phrase whereby the purchaser may avoid the contract "by notice in writing given to the original proprietor within 30 days after he first becomes aware of the failure" to comply with section 49 of the Building Units and Group Titles Act 1980, awareness encompassed only actual knowledge. It is to be read as identifying a point of time when the person not only became aware of the facts that lead to the non-compliance but also an awareness that the fact constitutes a “failure” to do something which the relevant Act says should be done instead of the point in time when the facts actually amount to a non-compliance.
There are many cases from as recently as 2010 and 2014 that uphold the decision made in Deming, even if they comment on the “surprising construction” of the High Court in that case, but no cases decide this point differently to that of the High Court.
In fact, the meaning of “awareness” in the context of the EPA was recently considered by the District Court in Dixonbuild Pty Ltd v Ipswich City Council, and on appeal (leave refused) in Ipswich City Council v Dixonbuild Pty Ltd. The decisions are apposite because they confirm the applicability of Deming and demonstrate that the mental element of “awareness” is very difficult for a prosecuting authority to prove.
The District Court decision was itself an appeal against a Magistrates Court decision to convict Dixonbuild of an offence against s.440ZG of the EPA (“Depositing prescribed water contaminants in waters and related matters”), relating to the depositing of a large pile of sand in a location where it could be reasonably expected to wash, blow, fall or move into a roadside gutter. The issue of awareness was relevant because under s.440ZE, the physical element of “deposits” in s.440ZG can be established, in part, by proving that a person who is either the occupier of a place or in control of a contaminant fails to remove a contaminant deposited into waters by another person within a reasonable time “after becoming aware” that the contaminant had been deposited in the relevant place.
At trial, Dixonbuild’s director claimed that he could “not recall” the deposit as at the relevant dates, and had “no memory”. While there was no direct evidence of such knowledge, the Magistrate found that the director had the requisite awareness on the basis that because the sand pile was quite prominent in size, and located in a clearly visible location (next to the access to the property), an inference of awareness could be drawn.
However, on appeal to the District Court, Dorney QC DCJ emphasised that, because the case was both circumstantial and subject to the criminal standard of proof, any reasonable inference consistent with innocence would be sufficient to generate a reasonable doubt. In the absence of any finding that the director’s evidence was dishonest (which Dorney QC DCJ noted may have been open to the Magistrate), the director’s claims of having no recollection were sufficient to give rise to a reasonable doubt.
His Honour proceeded to consider an alternative factual basis upon which the Magistrate found that awareness could be established. That alternative basis was that close to the relevant times, the director had signed an election concerning a Penalty Infringement Notice in relation to another part of the sand pile. Since this formed part of the same sand pile, the Magistrate had found that this was sufficient to establish awareness of the part of the sand pile relevant to this proceeding. However, Dorney QC DCJ did not accept this finding of fact, noting that the PIN did not specifically identify the relevant contaminants, and that in any event it could still not be proved that the director was aware that the part of the sand pile relevant to this proceeding was in the relevant place for the purposes of s. 440ZG.
The approach of Dorney QC DCJ was upheld by the Court of Appeal, with Chesterman JA (White JA and Dalton J concurring) agreeing with Dorney QC DCJ that it was necessary to prove beyond reasonable doubt a subjective awareness of the presence of contaminants at the relevant place, and concluding that Dorney QC DCJ’s approach could not “fairly be criticised”.
In the case of contaminated land, where changes in condition or events may be gradual or imperceptible without undertaking scientific monitoring, the narrowness of the “awareness” test means that it will often be very difficult to prove the offence.
WHO “CONSTITUTES” COUNCIL’S AWARENESS?
Should a constituent complain to a local government call centre operator about environmental harm arising from an event, will that constitute awareness by the local government and trigger the need for Council to give notification to DEHP within 24 hours?
We suggest the answer is no – in the example above, the local government will not have knowledge or awareness of the event giving rise to material or serious environmental harm but rather will have knowledge of an allegation about environmental harm. It is likely that a Court will find that the time in which to notify is not triggered until an investigation has confirmed it. In this respect, it is important to remember local governments may not have jurisdiction to investigate and, certainly, local governments do not have jurisdiction over contaminated land (unless of course it owns or occupies that land and/or the use or development carried out on the land is subject to a development approval that directly relates to the relevant issue). There may well be no jurisdiction and/or no obligation upon Council to investigate the matter and, clearly, when deciding to investigate, various other matters and priorities must be considered and weighed by Council.
In such circumstances as described above, local governments should, as a matter of good corporate citizenship, ensure they have policies and procedures whereby the complainant is advised to contact the DEHP.
Other than that, we suggest it will be unlikely that a Court will find a Council call centre operator’s awareness to be that of Council. We suggest that for Council to have such awareness, the matter would have to come before an appropriate officer who can either make decisions or ensure that superiors are made aware of the matter within a relatively short period of time. This may be an interesting legal argument.
Further legislative amendment, or updated DEHP guidelines, would be desirable to clarify the circumstances in which a local government will be deemed to have “awareness”. While the above reasoning accords with common sense, and the practical realities faced by local governments, it is possible that DEHP may adopt a much stricter approach.
For example, some amendments to mirror sections 320B and 320D of the EPA may be appropriate. Section 320B imposes an obligation on employees carrying out an activity on behalf of their employer to notify their employer within 24 hours of an event that threatens material or serious environmental harm. The employer, in turn, then has a duty under section 320D to notify DEHP within 24 hours.
A similar approach could be adopted for the notification obligations of local governments in relation to contaminated land. For example, a lower-ranked Council officer could be obliged to notify the CEO or its delegate, who would in turn have the obligation to notify DEHP on behalf of the local government. Given the unique circumstances facing local governments, it would also be appropriate to allow the CEO or its delegate some flexibility in deciding whether an investigation is necessary before notifying DEHP (eg allowing extra time where the CEO reasonably considers that investigation is warranted, such as where the “notice” is merely received through a call centre).
THE EFFECT OF THE CHANGES TO THE DUTY TO NOTIFY
It is suggested that the changes to the contaminated land notification obligations simultaneously result in an offence which creates significant uncertainty for local governments (and other persons) and may prove resource costly and yet will also be difficult for DEHP to prosecute.
On a practical level, it will often be difficult to know whether an event has the potential to cause material or serious environmental harm. For example, a sewerage leak may go undetected for some time. Once the leak is detected, it may not be immediately possible to ascertain the amount of the leak and assess whether the leak threatens material or serious environmental harm. In many cases, it is likely that only scientific experts would have sufficient knowledge to judge whether an event or change in condition may breach this threshold. For some local governments, water and sewage is not within their jurisdiction and yet they will be required to notify about what may be a commonly known “event”, or perhaps an otherwise innocuous event, such as an extremely hot day.
Another example may be where at a landfill, a development approval condition requires monitoring of the ground gas at the boundary. If this ground gas migrates to the boundary does that threaten material or environmental harm, particularly where it is a naturally occurring gas? If anything, these circumstances might fall within subparagraph (a) of the definition of material environmental harm: “that is not trivial or negligible in nature, extent or context”. It may only fall into this category because, depending upon the gas, it might be explosive if it were to migrate to, and be concentrated in, infrastructure which is then the subject of mechanical work or repair which may result in an explosion. Clearly, some instances will be arguable. However, Courts are likely to adopt a conservative approach where a failure to give notice can significantly increase the risk of a serious or irreversible incident.
Accordingly, as a precautionary measure, if a person suspects that something has occurred that could lead to unlawful serious or material environmental harm being caused, any relevant persons and the administering authority should be notified. The drafter of the written notice may wish to adopt language that does not admit to causing of any environmental harm, whether potential or actual.
That said, what are the potential consequences of giving the notice to DEHP? Will DEHP use one of its enforcement tools to require immediate remediation or mitigation? What if the local government is aware of the environmental issues and is taking steps to address a long-term legacy contamination matter but this will take time and is likely to be expensive. Remediation of contaminated sites is not cheap. Is there a risk that councils will be pushed to take immediate action that may well not be the most effective in the long run? If local governments control numerous contaminated sites, will they be given an opportunity to prioritise which sites should attract attention first?
The proposed notification provisions, as currently drafted, may lead to a flood of notifications, be a drain on councils’ resources but prove to have minimal environmental benefits.