Environmental Protection and Property Owners

Date: May 02, 2012
Document Type: Newsletter

Environmental protection is a somewhat nebulous concept in property law. Generally speaking, the term refers to the enforcement activities of the Environmental Protection Agency in each of Australia's states and territories (or, in the case of Queensland, the Department of Environment and Resource Management). The scope of these laws is wide and not restricted to land owners. However, this article outlines a few general points that can help you in determining when environmental laws and regulations could apply to your situation.

Who is impacted?

This depends on what aspect of environmental protection you are considering, but the following is an example list of people who would have some form of duty under the umbrella terms of “environmental protection” and “property”:

Residential Land owners;

Lessees;

Occupiers (that is, a person who is the premises manager);

Construction workers and contractors;

Conveyancers or solicitors involved in property transactions;

Property Developers and Renovators;

Warehouse operators; and

Directors of any companies undertaking the types of businesses above.

Example Situations

Taking the list above, here are some examples of how environmental protection laws could apply:

Residential Land owners – You are responsible for the proper disposal of waste from your land. This would include a duty to ensure that pesticides are properly handled and that you avoid dumping chemicals into run-off drains located on your land. In addition, your neighbours may consider obtaining noise abatement orders to handle serious noise complaints whether through the local council or the local courts.

Lessees – In the context of environmental protection, a lessee is under almost the same duties as the owner (as they are the person who has the use and enjoyment of the premises). This would also cover occupiers (that is, a person who is a manager of the premises).

Construction workers and contractors – There are extensive rules regarding environmental protection laws and construction sites. These include allowed hours of work and licensing requirements for heavy machinery.

Conveyancers, solicitors and people involved in property transactions – Solicitors and conveyancers would be aware of the need to conduct a search of a contaminated lands register. However, the rise of do-it-yourself conveyancing has led some people to overlook the role of environmental-related lands searches. In addition, anyone involved in conveyancing should consider the importance of other environmental data concerning the land, such as environmental protection orders and flooding maps.

Property Developers and Renovators – It has become common for property developers to address council questions regarding environmental matters by including environmental impact studies. However, some local councils and shires may require similar information from renovators if there is a view that works could impact on a site's natural environment. Somewhat amazingly, this could even extend to detailed descriptions of what trees would be removed on a person's land. In addition, there are specific rules regarding the disposal and movement of asbestos materials.

Warehouse operators – Australia's move towards unifying road transport has led to somewhat more consistent rules between states and territories on the storage of dangerous goods. Environmental protection laws impose numerous handling controls and safety equipment requirements to ensure that impact of an accident is contained.

Directors of any companies undertaking the types of businesses above – In some cases, company directors can be held liable for serious safety or environmental protection failures.

Getting Educated

Despite the appearance of heavy-handedness, environmental protection agencies need to raise public awareness and are generally very receptive to public inquiries. However, for more complex environmental matters (or in handling serious accidents or clean-ups) speaking to an environmental lawyer could be a wise move.

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