Applications to determine responsibility for remediation

The process for assessing and determining applications submitted to the Contaminated Sites Committee is governed by the Contaminated Sites Act 2003 (the Act ) and the Contaminated Sites Regulations 2006 (the Regulations).

• Format of applications to the Committee to determine responsibility for remediation
• Who is eligible to apply to the Committee to determine responsibility for remediation
• Procedure of the Committee

Format of applications to the Committee to determine responsibility for remediation

For applications to determine responsibility for remediation to be accepted by the Committee, they must:

• be in writing;
• stipulate the name and address of the applicant;
• clearly describe the location and the extent of the site sufficient to identify it;
• describe the applicant's interest in the site;
• clearly set out the grounds and facts on which the applicant relies to establish that he or she is or is not responsible for remediation of the site;
• provide any other information or documents that the person believes may be relevant to responsibility for remediation of the site, or any part of the site, in the possession of, or available to, the applicant;
• include a certified copy of, the certificate, or certificates, of title for all of the land that comprises all, or part of the site;
• be signed by the applicant; and
• be lodged at the Office of the Contaminated Sites Committee.

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Who is eligible to apply to the Committee to determine responsibility for remediation

The Act and Regulations set out the nature of applications that may be made to the Contaminated Sites Committee, and who is eligible to apply to the Committee to determine a matter.

Section 36(2) of the Act provides that the Committee is to make a decision as to responsibility for remediation if it is requested to do so by "an interested person", or on its own initiative.

Section 23 of the Regulations prescribes an "interested person" as follows:

"For the purposes of section 36(3) of the Act, the following are prescribed as interested persons in relation to a site -

• a person who is an owner or occupier of the land that comprises all, or part, of the site;
• a person who was an owner or occupier of land that comprises all, or part, of the site and in respect of whom there are reasonable grounds to suspect may have caused, or contributed to, the contamination of the site;
• a person who is, or was, an owner or occupier of land adjoining land that comprises all, or part, of the site and in respect of whom there are grounds to suspect may have caused, or contributed to, the contamination of the site;
• a person who is a mortgagee of land that comprises all, or part, of the site;
• a person given notice under the section 42(1) of the Act in relation to the site;
• the CEO;
• a person who, in the opinion of the CEO, has a particular interest in the site and has been approved in writing by the CEO for the purposes of this paragraph.

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Section 34 of the Act requires the Committee, when making a decision under the Act, to -

(a) consult the Chief Executive Officer (CEO) of the Department of Environment and Conservation (DEC) and any other person it considers necessary to consult; and

(b) act according to equity, good conscience and the substantial merits of the case, without regard to technicalities or legal forms, not to be bound by the rules of evidence and to conduct its enquiries in any manner it considers appropriate.

When requested to do so under the Act, the Committee will generally make a decision as to responsibility for remediation of a site within six months after the day on which the application is made.

In determining who is responsible for remediation of a site, the Committee must also determine the extent to which a person is responsible for remediation of the site.

Prior to making a decision about a person's responsibility to undertake remediation of a site, the Committee will provide that person with written notice of its proposed decision. The person will be given the opportunity to make a submission to the Committee, if he or she disagrees with the proposed decision. The Committee will specify the timeframe within which a submission is required to be lodged.

In making a decision about a person's responsibility to remediate a site, the Committee will take into account:

• the hierarchy of responsibility for the remediation of contaminated sites as prescribed in section 24 of the Act,
• all available information on the nature and extent of known contamination of the site, currently and historically;
• the use to which the site has and is currently being put and the activities that have been carried out at the site which may have caused or contributed to the contamination;
• the contents of any notice of a proposed decision that is given to a person;
• any previous decision made by the Committee as to responsibility for remediation of the site;
• any submission made to the Committee in response to a notice of a proposed decision; and
• any reports on the matter provided to the Committee by DEC and any other matters or information provided to the Committee that the Committee considers relevant.

The Committee will give written notice of its decision and reasons for its decision to each person the Committee has decided is responsible for remediation or whose responsibility for remediation has changed, the CEO of DEC and any other affected persons. For the purposes of the Act an affected person includes:

• in the case of a decision under section 28, the insolvent body corporate;
• in respect of a request to the Committee to make a decision as to responsibility for remediation by an interested person under section 36(2)(a), any person who made a request;
• in the case of a decision made under section 54(1)(c), the occupier of the site;
• an owner or occupier of the land;
• a mortgagee of the land;
• a person who has been given a regulatory notice in respect of the site by the CEO of DEC; and
• a person approved by the CEO of DEC as having a particular interest in the site.

A person who has been given notice of a decision in respect of responsibility for remediation may appeal against a decision of the Committee, to the Supreme Court, but only on a question of law and within 21 days after the notice was given, or such later time as may be specified by the Supreme Court.

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