Beware: Clean Up Notices issued to landholders for pollution generated by former occupiers of land

A Supreme Court ruling on contaminated land in Gippsland has confirmed the power of the Victorian Environment Protection Authority (EPA) to require the owners of property to take action on pollution that is on their land.

EPA CEO Nial Finegan said the ruling recognises that the owner is not always the polluter, but where the pollution is from an unknown source or has been there for decades or generations, it still needs to be resolved.

Ruling on Sale Elderly Citizens Village (SECV) v Environment Protection Authority Victoria, the Supreme Court found that a Clean Up Notice issued to SECV under Section 62A(1)(a) of the Environment Protection Act was validly issued and it was a reasonable exercise of discretion available to the EPA under the Act. The court also awarded costs in EPA Victoria’s favour.

The Clean Up Notice requires that SECV organise an expert assessment of the risk to the current users of the property from vinyl chloride vapour that may be arising out of pollution below ground.

“The decision upholds EPA’s many decisions to issue Clean Up Notices to landholders in cases where the pollution happened generations ago or from an unknown source, leaving us with no possibility of identifying the polluter and holding them responsible for any clean up that’s needed,” Mr Finegan said.

“It supports the common-sense expectation that the owner is responsible for the land and that the community should not be left with the cost of the many cases involving legacy pollution from decades ago, or companies or individuals who have disappeared since the pollution occurred,” he said.

In the SECV case, the groundwater on the land was found to be contaminated with vinyl chloride and the groundwater was judged to be part of the land and therefore part of the owner’s property.