Setting aside a Clean-Up Notice

Last month, the Queensland Planning and Environment Court set aside a Clean-Up Notice issued pursuant to the Environmental Protection Act 1994 (Qld) despite the land in question being a major part of a wide spread acidic soil problem. 

What you need to know

• Setting aside a notice: 
  • it may be possible to set aside a Clean-Up Notice in circumstances where an incoming purchaser of land inherits a pre-existing and wide spread environmental problem and the incoming purchaser has in no material way been the cause of the subject environmental problems.
• Utility of remedial works: 
  • it is relevant in challenging a Clean-Up Notice whether the remedial works required by the notice are effective, especially for a widespread contamination incident.
• Onus of proof: 
  • in an appeal regarding a Clean-Up Notice, it is for the party issuing the notice to establish that it was appropriate for the notice to be issued.

The Planning and Environment Court decision

On 27 October 2017, the Planning and Environment Court delivered the judgment of Hungtat Worldwide Pty Ltd v Chief Executive of the Department of Environment and Heritage Protection [2017] QPEC 62.

This proceeding was an appeal in respect of a Clean-Up Notice purportedly issued by the Department of Environment and Heritage Protection (DEHP) pursuant to section 363H of the Environmental Protection Act 1994 (Qld) (EPA) to Hungtat Worldwide Pty Ltd (Hungtat) in March 2013.

Hungtat is the owner and operator of the Palm Meadows golf course on the Gold Coast, Queensland.

Following complaints, DEHP carried out an investigation and discovered that canal water immediately west of the golf course was contaminated by acidic soil products and iron-rich water. The DEHP issued a Clean-Up Notice to Hungtat, alleging that a contamination incident had occurred. Hungtat appealed to the Planning and Environment Court. 

In the appeal, there was no dispute that:

• remedial action was required to address a wide spread acid soil problem in the catchment; and
• Hungtat had not carried out any works, or done any positive act, to have caused the alleged contamination incident. 

The issue was whether Hungtat, as recipient of the notice, was required to bear the costs associated with remedying a historic and widespread acid sulfate issue. The evidence was that, while recurrent, the oxidisation of acid sulfate soils and the mobilisation of acidic by-products had been significantly exacerbated by the construction of an agricultural drainage system over 100 years ago.   

The DEHP contended that Hungtat as the current owner of the premises:

1. “permitted” the incident to happen;
2. was responsible for the consequences of the environmental harm; and
3. ought to take responsibility to do something to address the environmental problem.

The Court rejected the above contentions. It held that Hungtat did not “permit” the incident as there was no evidence of an act or omission on the part of Hungtat that could meet the definition of the word “permit”.

Notably, the Court found that neither knowledge of the existence of the problem, nor the capacity to prevent it from manifesting but failing to do so, was sufficient. 

The Court also rejected the argument that Hungtat was the person who, at the time of the incident, was “the owner or person in control” of a contaminant involved in the incident for the purposes of section 363G(b) of the EPA. This conclusion was reached for reasons including that acid sulfate soils are naturally occurring, and were (in this instance) exposed as a result of the historical activities of others. Further, it was also considered that the contamination was mobilised by natural mechanisms (such as flooding).

However, the Court was satisfied that at the relevant times, the evidence established:

1. a contamination incident had occurred;
2. Hungtat was the occupier of the land;
3. a contamination incident emanated from the land;
4. Hungtat had done little to address the known environmental problems associated with the Place (up until the engagement of experts in the appeal);
5. it was very likely further contamination would occur if appropriate steps were not taken;
6. while the works identified in the Clean-up Notice would probably lead to a material improvement in water quality, they would be unlikely to remedy the contamination situation; and
7. the works proposed by the experts in the appeal were materially different to those required under the Clean-up Notice and would be much more likely to meaningfully address the major environmental problems involved.

Effectively, the first five findings would have been sufficient to satisfy the statutory elements required to issue a Clean-up Notice. However, the judge noted that DEHP had a discretion as to whether or not (in the circumstances of each particular case) a Clean-Up Notice should be issued.  

Ultimately, the Court determined that the DEHP should not have exercised its discretion to issue the Clean-Up Notice, and that the Clean-Up Notice should be set-aside for the following reasons:

• The works required in the Clean-Up Notice might have some positive environmental effect, but did not address the real problem. Indeed, the Court observed that the works would likely result in a material waste of time and money.
• The best solution (which had been identified by the experts in the course of the appeal) would require the co-operation of the Gold Coast City Council in no small part.
• It would have been a disproportionate response to require Hungtat to undertake all the works proposed, in circumstances where the contamination was widespread and Hungtat was not the sole owner/occupier of the relevant catchment.
• Hungtat had, in no material way, been the cause of the environmental problems. It was already a pre-existing problem. 

A final point to note is that the judgment provides some much needed clarity surrounding the burden of proof in an appeal against a Clean-Up Notice. His Honour Judge Jones indicated that the burden rests with the entity issuing the notice to establish that it was appropriate for the notice to be issued. Further, confirmation was also provided that the standard of proof is at the higher end of the civil standard in accordance with the Briginshaw principles.¹

This case is notable as it reinforces the ability of the Court to set aside a Clean-up Notice on discretionary grounds. While the circumstances of the case are unusual, they are not unique, considering that contamination incidents often have a historic cause, widespread effect, and require the efforts of many parties to remedy. The case sets an important precedent, and will be interesting to see whether or not it is challenged by further appeal. 

For further information or discussion, please contact HopgoodGanim Lawyers’ Planning and Development team.

1. Briginshaw v Briginshaw (1938) 60 CLR 336