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07 Jun 2012

WA land-owners might soon have clearer idea of their responsibilities for contaminated land

by Mark Etherington

The WA Supreme Court will consider the threshold question of whether a "person caused or contributed to, that contamination by an act that was done without lawful authority".

Western Australian land-owners will soon have more clarity about their responsibilities under the Contaminated Sites Act 2003 (WA).

Despite the Act having been in operation since 1 December 2006, the Supreme Court has just heard argument for the first time under the Act's appeal provisions.

In BP Australia Pty Ltd v Contaminated Sites Committee (GDA 14 of 2011), Chief Justice Martin heard an appeal from a decision of the Contaminated Sites Committee regarding remediation responsibility.

Under section 77 of the Act an appeal can only be brought on a question of law. The Supreme Court has no jurisdiction to overturn the Committee's decision in respect of factual findings (irrespective of whether those findings involve error). Consequently, the characterisation of the Committee's findings on the maintenance and repair obligations under the lease will be a critical consideration in this case.

Argument addressed section 25(3) of the Act, and it is hoped that the Supreme Court will provide clarity around the threshold question of whether a "person caused or contributed to, that contamination by an act that was done without lawful authority".

The Chief Justice has reserved his decision and a further update will be provided when that decision is handed down.

 

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.