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LAW 1511 Property Law

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LAW 1511 Property Law

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Course Code: LAW 1511
University: The University Of Adelaide

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Country: Australia

Question:

Scenario 4A Aussie Whitegoods Pty Ltd, located on a waterfront, was a major manufacturer of electrical home appliances during the 1950s and 1960s. However, the 15-hectare site was abandoned in 1970. Increasing home buyer interest in the area has made the site attractive to housing development companies. Your client is a developer who specialises in high rise development and wants to undertake a multistage development and has entered a joint venture arrangement with an investor to include a private University on this site.
When she asked the local council for a rezoning, she was told that there were concerns that lead and other heavy metals, the waste products of the manufacturing of electrical goods, may have been buried on the site. The EPA is also concerned that ground water may be flowing through the site.
Your client wants a comprehensive advice on her position. Amongst other things, on the basis that the concerns have to be addressed and instructing you to assume that they are borne out, she wants to know:
(i) the legal requirements which the council and she must follow, and
(ii) other available practical measures permissible under the relevant laws which she may take, before the site can be developed?

Answer:

The legal requirements which the council and she must follow
In situations where it is presumed that parcels of land have been contaminated, a preliminary investigation has to be done by the Environmental Protection Agency as well as the landowner. This includes the completion of a site audit report by a site auditor in relation to Part 4 of the Contaminated Land Management Act 1997 No 140. According to Part 1 section 5 of this Act, land contamination is defined as the presence of substances that high level of concentration and as such, this becomes harmful to human beings and the environment at large. Such substances include lead and toxic heavy metals which are usually left behind by electronic companies such as Aussie Whitegoods Ltd, (Song et al., 2018).
Part 2 of the Contaminated Land Management Act 1997 No 140 provides for how contaminated land should be managed. The first step entails carrying out a preliminary investigation of the land. Section 10 states that the Environmental Protection Agency should task an individual to undertake a preliminary investigation on the land by serving him or her a written directive. This aims at finding out whether the land is contaminated or not. This also covers the extent to which the substances being investigated have contaminated the land, (Reinikainen, et al., 2016). In subsection c, the investigator has to provide information to the Environmental Protection Agency concerning the investigation is done. Under section 3, individuals who are served with the directive to perform the investigation include the person being suspected to have caused the contamination, the landowner, notional owner of the land, individual who carried out certain activities on the land as well as public authorities.
If significant contamination is realized, the landowner has a duty of vacating the land or cleaning up the land depending on how toxic the substances are, (Laidlaw et al., 2017). As such, this calls for management of the land as stipulated by section 13. Remediation can also be carried out on the land before allowing commercial or private use. Section 33 calls for liability to be imposed on landowners who enter the land, occupy it and allow other developments to take place. As such, the landowner has the duty to reduce loss or injury as well as restitution and compensation of any kind.
Other available practical measures permissible under the relevant laws which she may take before the site can be developed?
Clean up of the contaminated, commonly called remediation is the main method that can be used. In many cases, the local authorities can enforce clean up measures that have to be followed by the developer before she develops the land, (Bardos et al., 2016). It is thus essential to have due diligence when setting up premises in this land so that human beings cannot be exposed to toxic substances later. This reduces the risk of liability towards damages or instances of being sued. In case the level of contamination is extreme, looking for a different place for the development can be the next option.
References
Bardos, R.P., Bone, B.D., Boyle, R., Evans, F., Harries, N.D., Howard, T. and Smith, J.W., 2016. The rationale for simple approaches for sustainability assessment and management in contaminated land practice. Science of the Total Environment, 563, pp.755-768.
 Laidlaw, M.A., Mohmmad, S.M., Gulson, B.L., Taylor, M.P., Kristensen, L.J. and Birch, G., 2017. Estimates of potential childhood lead exposure from contaminated soil using the US EPA IEUBK Model in Sydney, Australia. Environmental research, 156, pp.781-790.
Reinikainen, J., Sorvari, J. and Tikkanen, S., 2016. Finnish policy approach and measures for the promotion of sustainability in contaminated land management. Journal of environmental management, 184, pp.108-119.
Song, Y., Hou, D., Zhang, J., O’Connor, D., Li, G., Gu, Q., Li, S. and Liu, P., 2018. Environmental and socio-economic sustainability appraisal of contaminated land remediation strategies: a case study at a mega-site in China. Science of The Total Environment, 610, pp.391-401.

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