Landlords should be aware of the recent changes to the Environmental Protection Act 1994 (Qld) (EP Act) that have an impact on their duty to notify the Department of Environment, Science and Innovation (DESI) in specific circumstances.
Section 320DA of the EP Act (Duty of owner, occupier or auditor to notify the administering authority) now requires a person, including an owner of occupier of land who becomes aware, or ought reasonably to have become aware, of:
- the presence of, or happening of an event involving, a hazardous contaminant in the local government area that is causing, or is reasonably likely to cause, serious or material environmental harm; or
- if the land is contaminated land – a change in the condition of the land that is causing, or is reasonably likely to cause, serious or material environmental harm; or
- a notifiable activity having been carried out, or being carried out, on the land,
to, within 24 hours after becoming aware of the matter, or the time when the person ought reasonably to have become aware of the matter, give the administering authority written notice of the event, unless the person has a reasonable excuse. The Courts have not considered the meaning of ‘reasonable excuse in the context of section 320DA of the EP Act. However, the term is generally understood as a situation where the person took steps that a reasonable person would consider justified in the circumstances, based on necessity, urgency or unavoidable circumstances.
The amendment expands the duty to notify to not only when a person becomes directly aware of an event but also where they ought to have been aware of an event that triggers the duty.
Next steps for landlords
In light of the broader duty and as environmental regulations continue to tighten, landlords must take proactive measures to protect themselves from potential contamination risks including:
- Landlords should ensure any relevant leases contain a requirement for a tenant (as the occupier) to notify the landlord (and the administering authority) of a contamination incident immediately upon the tenant becoming aware of the incident.
- Consideration should also be given to whether the landlord’s preferred form of lease extends to any liability incurred by the landlord resulting from the tenant failing to notify the administering authority within the required timeframe.
- Conversely, before entering into a lease, a tenant (particularly of industrial premises) should make enquiries as to whether the subject land is contaminated, or may become contaminated, due to a previous occupant’s use of the land.
Landlords need to stay informed and act swiftly to mitigate risks arising from these new environmental obligations. For tailored advice or more information, reach out to Sarah Roettgers and Amelia Prokuda.
