Chapter 10

Rural Lands, Soil and Water Laws

Farming covers much of Tasmania's land area and can have profound impacts on environmental quality. Rural industries use large quantities of chemicals and fertilisers and these are released directly into the open environment.

Farming activities can have major impacts on water quality, soils and erosion and can pose a significant threat to remnant patches of native vegetation.

Despite all these impacts, the farming sector is one of the least regulated. Tasmania now has some vegetation clearance controls, but it is the only state with no specific soil protection legislation.

Farmers often do not need land-use planning approval when undertaking agricultural activities as most of these activities are defined as a 'permitted use' in rural zones in Planning Schemes.

The Primary Industry Activities Protection Act 1995 also prevents some common law 'nuisance' actions being taken against farmers for noise and other pollution caused by their activities.

Many of the environmental problems in rural areas have resulted from regressive historic attitudes and poor agricultural practices. However, the farming sector has itself been seriously affected by rapidly spreading soil salinity, rural tree decline and climate-induced drought. These factors have reduced the economic viability of many farms and continue to cause great distress in farming communities. Therefore, most farming communities today recognise the need to change to sustainable farming practices.

How are rural lands protected?

The State Policy on the Protection of Agricultural Land (often referred to as the 'PAL policy') relates mainly to overall land use and does not contain specific provisions that can be used to prevent environmentally harmful farming practices.

A new version of the PAL policy was released by the Tasmanian Planning Commission in 2009. Controversially, the new policy includes plantation forestry as a protected agricultural use. The TPC also issued a Guideline for non-agricultural use of prime agricultural land.

Along with all other State Policies, the PAL Policy is given effect through council Planning Schemes (☛ Go to Chapters 4 and 5 for more information).

The day-to-day use of rural lands is mostly regulated by a variety of pieces of legislation dealing with specific aspects of land and water use. The most important of these is the Environmental Management and Pollution Control Act (☛ Go to Chapter 6 for information about this).

Vegetation Clearance Controls

☛ Go to Chapter 7 and 8 for information about the laws regulating small and large scale clearing of vegetation.

Water laws and approvals for farm dams

☛ Go to Water Laws for detailed information about water allocations, irrigation and farm dams.

Farm Chemicals

The farming sector has become reliant on the use of chemicals, for both agricultural and veterinary purposes.

The use and abuse of these chemicals can have grave environmental consequences, so regulation of them is a very important component of environmental law.

Farm chemicals are regulated throughout their life cycle – from their manufacture to transport, sale, storage, use and disposal – by a variety of mechanisms.

Who regulates what chemicals can be used?

The Australian Pesticides & Veterinary Medicines Authority (APVMA) is responsible for assessing and registering chemical products for use in Australia. It is an offence under the Tasmanian Agricultural and Veterinary Chemicals (Control of Use) Act 1995 to sell or use a chemical product that has not been approved by the APVMA.

The regulation and control of registered chemical products is administered throughout Australia under four Commonwealth Acts – known as the 'AgVet Acts'.

:!: An amendment to one of these Commonwealth Acts, the Agricultural and Veterinary Chemicals Code Act 1994, is currently before Parliament. If passed, the Agricultural and Veterinary Chemicals Legislation Amendment Bill 2012 will give APVMA the power to periodically review active constituents in already approved chemicals. The new legislation would also require APVMA to implement the Code by issuing guidelines and taking enforcement action in relation to unauthorised chemical use.

In Tasmania, these national acts have been adopted by the Agricultural and Veterinary Chemicals (Tasmania) Act 1994, which enables state government officers, agencies and courts to administer the provisions of the federal Acts.

The APVMA has a variety of powers that it can use to protect the public. For example, if the Authority was convinced that there was an undue risk to the safety of people exposed to a chemical product or its residues, or if the product was discovered to have an unintended harmful impact on exposed animals, plants or ecosystems, the Authority could require any person who has stocks of the chemical products to stop supplying the products and/or to take other directed actions.

The Australian Competition and Consumer Commission (ACCC) also has powers to issue product recall notices, under the Commonwealth Competition and Consumer Act 2010. For example, if you were able to show that a product was mislabelled, or contained a chemical that was not registered for use in Australia, you could request that the APVMA and the ACCC investigate whether the product should be removed from the market.

Where can I find information about farm chemicals?

The Australian Pesticides & Veterinary Medicines Authority keeps a register of all agricultural and veterinary chemical products and approved active constituents. The website also contains a lot of useful information about specific chemical agents and controls. It also tells you what chemicals are prohibited or restricted, and how they are restricted. You can request further specific information from the APVMA.

In Tasmania, the Spray Referral and Information Unit (the ‘Spray Unit’) within the Department of Primary Industries, Parks, Water and Environment (DPIPWE) functions as a point of contact for information and complaints. The Spray Unit can inform you about 'maximum prescribed levels' of chemicals in foods, soils or water and can also assist you with tests of water, soil or produce in order to detect levels of contamination.

:!: If you still have concerns about a specific chemical or chemical pollution, you may be able to make a Right to Information (RTI) request to relevant federal or state government authorities to find out more (☛ go to Chapter 13 for information about RTI requests).

How are chemicals regulated within Tasmania?

chemicals_2.jpg The use, storage and disposal of agricultural and veterinary chemicals is regulated in Tasmania by the Department of Primary Industries, Parks, Water and Environment. The main legislation dealing with farm chemicals is the Agricultural and Veterinary Chemicals (Control of Use) Act 1995, and the Regulations and Orders made under the Act. The most important of these regulations is the Agricultural and Veterinary Chemicals (Control of Use) Regulations 2012.

Under these laws, anyone using, transporting or disposing of chemicals must do so strictly in accordance with the label. If you do not follow the directions on the label, you could face a fine of up to $26,000 (see section 18).

The Minister for Primary Industries can also issue orders:
  • regulating the handling of a chemical product (section 20); or
  • prohibiting the use of a particular chemical product for any purpose.

In particular, it is an offence to handle or dispose of a chemical product that is or is likely to be an “injurious presence” in a body of water, unless you have a permit (clause 5, Agricultural and Veterinary Chemicals (Control of Use) (Handling of Chemical Products) Order 1996). Anyone who does not comply with an order, can be prosecuted and could face a fine of up to $26,000.

The Act also sets up a system of permits and licences that commercial operators (including aircraft operators who conduct aerial spraying) must obtain in order to be able to lawfully use chemicals. For example, if you intend to use an agricultural or veterinary chemical for commercial purposes, you must have a commercial chemical operator licence (see sections 8 and 21 of the Regulations).

The Registrar of Chemical Products (see contact list) controls permits and licences and has extensive responsibilities under the Act.

Chemicals in drinking water and food

The acceptable limits for agricultural chemicals in drinking water are listed in Chapter 6 (section 6.3.3) of the Australian Drinking Water Guidelines 2011 published by the National Health and Medical Research Council (NHMRC).

⇔ Click HERE to download the Tasmanian Drinking Water Quality Guidelines. These guidelines are linked to Tasmania’s Public Health Act 1997.

If chemical levels in water used for domestic purposes or stock watering are higher than the levels set out in the Guidelines, there may be a breach of the Agricultural and Veterinary Chemicals (Control of Use) Act 1995. If Guideline levels have been, or are likely to be, exceeded, inspectors can order a person using agricultural chemicals to stop using them or change the way that they are used.

The Public Health Act 1997 also contains provisions requiring the Director of Public Health to be informed about contamination of water supplies causing a threat to public health (see section 128).

Under s150 of the Public Health Act 1997, the Director can order that any substance which is, or is likely to be, a threat to public health not be manufactured, sold, used or transported. Part 5 of the Agricultural and Veterinary Chemicals (Control of Use) Act 1995 also provides powers for an inspector to require contaminated stock or produce to be destroyed.

The Food Act 2003 adopts the Australia and New Zealand Food Standards Code, which sets maximum allowable limits for pesticide contamination of water and human and stock food. It is an offence to sell any food that does not comply with these Standards.

What do I do if I want laws to be changed?

If you believe that chemical control regulations are deficient and need upgrading, then you should:

  • Lobby the Minister for Primary Industries or the Tasmanian Agricultural and Veterinary Chemicals Advisory Committee, a statutory body which gives advice to the Minister on such issues.
  • Lobby the Ministers responsible for the Public Health Act 1997 and the Environmental Management & Pollution Control Act 1994.
  • For changes to Federal laws, lobby the Minister administering the AgVet code, the APVMA, or the Minister for the Environment.
  • Look out for notices about opportunities to make submissions into reviews of the Drinking Water Guidelines or Food Standards Code.

How is chemical spraying regulated?

Drift or seepage of chemicals from one property to another (or into waterways and catchments) may cause immense anxiety and frustration to those who are affected. Therefore, a number of controls exist to manage the impact of chemical spraying on nearby properties.

Under the Agricultural and Veterinary Chemicals (Control of Use) Act 1995, commercial ground and aircraft spraying operators must have a permit, and the aircraft be licensed to conduct spraying. It is illegal to attach aerial spraying equipment to any aircraft unless the aircraft is approved by the Civil Aviation Safety Authority for agricultural operations.

Agricultural spraying is regulated under:

Code of Practice for Aerial Spraying

Code of Practice for Ground Spraying

Agricultural and Veterinary Chemicals (Control of Use) Regulations 2012

These codes and regulations spell out comprehensive rules that operators and contractors must comply with when carrying out spraying operations. These include requirements to inform neighbours likely to be affected, weather conditions in which operations may need to be abandoned or changed and setting out areas which must not be sprayed, eg over water bodies or within buffer zones of sensitive sites such as schools. In general, chemicals must not be allowed to move “off target to the extent that it may adversely affect any persons, their land, water, plants or animals.”

If you are affected by spray drift, you should lodge a complaint as early as possible with the operator, the owner of the land being sprayed and the Spray Unit and demand that action be taken. If possible, identify any specific breaches of the relevant Spraying Code or Regulations– for example, are the operator and the aircraft properly licensed? Was spraying carried out too close to sensitive sites? Does your neighbour have a permit authorising them to apply the chemical via irrigation?

The forestry industry also uses significant quantities of pesticides and herbicides. Forestry operators are required to comply with the Forest Practices Code when applying chemicals. The exclusion zones around waterways in the Forest Practices Code are currently stricter than those in the Code of Practice for Aerial Spraying – in future the spraying codes could be amended to adopt the stricter exclusion zones set out in the Forest Practices Code.

☛ Go to Chapter 8 for more information about forestry controls.

Can spraying be prohibited?

Yes. Under the Agricultural and Veterinary Chemicals (Control of Use) Act 1995, the Minister can issue orders controlling or prohibiting agricultural spraying, in order to protect susceptible plants, stock, public health, the environment or trade. A person must comply with such an order, or face a fine of up to $26,000 ($52,000 for a corporation).

What legal remedies are available?

A variety of remedies is available if you can show that the harm you have suffered (such as poor health, stock deaths or increased pollution levels in your water supply) was caused by a particular spraying event:

Under common law

☛ Go to Chapter 6, for information about common law actions for chemical trespass and nuisance. The court could issue an injunction to prevent the neighbouring landowner from future spraying. The court could also award damages for any harm suffered due to the spraying.

Under the Environmental Management and Pollution Control Act (EMPCA)

If the spraying has caused environmental harm (including environmental nuisance), and was not carried out in accordance with a permit, it may be an offence under EMPCA.

☛ Go to Chapter 6, for information about how your local council, the EPA Director or yourself can take action for offences under EMPCA – including issuing infringement notices, prosecuting the offender or taking civil action in the Tribunal. If you take action in the Tribunal, the Tribunal may make orders such as the prohibition of future spraying and/or the payment of compensation for any injury, loss and damage that you have suffered as a consequence of unlawful spraying activities.

:!: You have 3 years from the date of being sprayed to take 'nuisance' actions under EMPCA.

Under the Agricultural and Veterinary Chemicals (Control of Use) Act

This Act makes it an offence for a person to carry out (or cause to be carried out) agricultural spraying which 'adversely affects' any person, plants, stock, agricultural produce, water bodies, groundwater or soil on another person's premises unless that person has obtained permission of the owner of those premises (Section 30(1)).

'Adversely affects' is defined to mean a residue of an agricultural chemical product 'in excess of the prescribed level' – Regulation 44 of the Agricultural and Veterinary Chemicals (Control of Use) Regulations 2012 prescribes specific limits for various situations, including limits set out in the Drinking Water Guidelines, groundwater residue limits set by the Registrar for a particular region or maximum residue levels set out in the Food Act 2003. The penalty for contravention is a fine of up to $26,000. The Registrar or an inspector can also issue infringement notices on the spot.

Regulation 5 of the Agricultural and Veterinary Chemicals (Control of Use) (Handling of Chemical Products) Order 1996, prohibits the handling or disposal of a chemical product that causes the chemical product to be an “injurious presence” in any body of water. You should report any breaches of this Order to the Spray Unit.

:!: When making a complaint to the Spray Unit, you should remind them that they are obliged to act in a way that furthers the objectives of the Act, including to “avoid the presence of chemical products in food for human consumption, feed for animal consumption and drinking water supplies”.

Farmers and forestry operators must notify all occupiers of properties within 100 metres of the target area of aerial spraying activities and should advise neighbours of ground spraying activities. Under section 31 of the Agricultural and Veterinary Chemicals (Control of Use) Act 1995, you can also apply to DPIPWE for a direction to be notified of chemical spraying in the vicinity of your home.

You can only apply if:

  • you have been living at your premises for at least 12 months; and
  • your home is within 1 kilometre of an area that is likely to be sprayed using aerial spraying, or within 100 metres of an area likely to be sprayed using ground spraying techniques; and
  • you pay an application fee.

The Secretary of DPIPWE can issue a direction to the landowner that you must be given adequate notice of spraying activities, including the types of chemicals that will be used. If the landowner does not comply, he/she is guilty of an offence and could face a fine of up to $26,000.

Under the Police Offences Act 1935

Section 19 of the Act prohibits placing anything mixed with poison on public or private land if it may be “destructive to life”.

Under the Inland Fisheries Act 1995

Under this Act, it is an offence for any person (including a corporation) to:

  • put, or allow to flow, into any inland waters containing fish any liquid, gaseous or solid matter which is likely to be poisonous or injurious to fish, the spawning grounds of fish or the food of fish (Section 126 (1)); or
  • put into any inland waters any fertiliser or any other chemical substance, unless they have consent from the Director. (Section 126(3)).

Maximum penalties for offences are $6,500.

:!: If farm chemicals have been released into a river system, you should approach the Inland Fisheries Service and ask them to investigate.

Under the Public Health Act 1997

Section 128 provides that an agency, public authority or person responsible for managing a water supply (such as a local council) must manage the water in a manner that does not pose a threat to public health. On becoming aware that the quality of the water is or is likely to become, a threat to public health, they must notify the Director. The maximum penalty for failing to notify the Director is $3,250.

The section also requires councils to take appropriate action if water contamination is, or is likely to be, a threat to public health. This can range from issuing ‘Boil Water’ notices, to providing alternative water supplies for the community until the contamination is addressed. Under section 129, the Director may also issue orders restricting the use or supply of water – any person who fails to comply with an order can be prosecuted and face a maximum penalty of $13,000.

What can I do if my property or water supply is affected by spray drift?

Notify authorities:

  • Immediately contact the Spray Unit within DPIPWE on 1800 005 244. The Spray Unit will investigate complaints and can initiate prosecutions if there is sufficient evidence of a breach.
  • If the problem is likely to persist, it is a good idea to also lodge a complaint with the state pollution hotline (1800 005 171) and request that action be taken to restrict the operator’s activities. The Director of the EPA can serve an Environment Protection Notice (EPN) on someone who is breaching a Code of Practice and, if the breach continues, commence legal proceedings (☛ Go to Chapter 6).
  • If you are concerned about water quality, contact the Director of Public Health for advice. The Director has powers to make orders against individuals and public authorities to ensure that water quality does not present a public health risk.
  • Contact the Environmental Health Officer (EHO) at your local council and ask them to take a water sample. EHOs are experienced in proper sampling techniques and can arrange for the sample to be analysed. If the sample is contaminated, ask the EHO to take action against the polluter.

:!: The EPA and the Registrar have signed an Memorandum of Understanding outlining their respective responsibilities for investigating and addressing chemical spraying and spill incidents.

Record information:
  • For ongoing issues, it is important to maintain baseline information so that you can investigate suspected contamination and show that chemical levels are higher than normal. Contact your local Landcare or Water Watch group from information about basic chemical monitoring in your area.
  • If your property has been sprayed or affected by chemical run-off, you will need evidence of this, and be able to link the event to a particular operator or landowner. It is advisable to take photos of spraying (if possible), make diary notes, take samples and have them tested for chemical residues as soon as possible.
  • Take reliable samples of water, soil or produce and have them tested by an accredited laboratory.
  • Tests would need to show that the levels of the chemicals in your soil, water or produce exceed the maximum levels allowed under the Regulations (e.g the Drinking Water Guidelines). It may be necessary to conduct several tests over a number of months.
  • If you are concerned about health impacts, go for a medical check up. Keep medical records showing any abnormally high chemical residues in your body or other symptoms that may be related to exposure to chemicals.

☛ Go to Chapter 13 for general information about taking action.

1080 poison

1080 (sodium monofluoroacetate) is a poison frequently used to control pest species in rural areas. Since January 2006, 1080 poison has not been used in State forests. However, private forestry operators and farmers continue to use 1080 to target browsing animals such as possums and wallabies.

Use of 1080 is regulated by DPIPWE under the Poisons Act 1971 and the Code of Practice for the Use of 1080 for Native Browsing Animal Management (1080 Code). All use of 1080 poison is supervised by a DPIPWE Wildlife Management Officer.

In May 2011, a Report was released as part of the Tasmanian Community Forest Agreement that focussed upon finding alternatives strategies for 1080 use. The Report recommended a number of alternatives to 1080 use be adopted, such as wallaby grids, wildlife-proof fencing and a potentially more humane poison called ‘Feratox’.

⇔ Click HERE to download the Final Report.

Required permits
Before 1080 baits can be laid, the operator must obtain several permits:
  • Permits for use of a controlled poison under the Agricultural And Veterinary Chemicals (Control of Use) Act 1995
  • A permit to ‘take’ (that is, to kill) specified wildlife under the Nature Conservation Act 2002
  • If any threatened species may be affected, a permit under the Threatened Species Protection Act 1995.
A permit to lay 1080 must not be issued unless an authorised officer is satisfied that a damage assessment has been carried out which shows that:
  • Wildlife poses an unacceptable risk to existing crops or pasture (determined by a formal damage assessment); and
  • The poison will not pose an unacceptable risk to non-target species (a risk assessment must be completed); and
  • Alternative control measures (e.g. shooting and fencing) have been tried and are not effective.

:!: In general, only one permit will be issued for the same site within three years.

Restrictions on the use of 1080 poison
The 1080 Code provides that poison baits must not be laid within:
  • 200 metres of an occupied house or a public picnic facility
  • 20 metres of a permanent stream
  • 5 metres of a property boundary or public road.

The permits can also impose additional restrictions, for instance in areas occupied by large numbers of non-target species. If you are aware of some affected areas that may be highly sensitive to 1080 poison (wet areas, feeding grounds), you should notify DPIPWE and ask them to make sure that the conditions do not allow 1080 to be laid in these areas.

The permit holder is required to:
  • give written notice to all landholders within 500 metres of the poison line (DPIPWE can also require notification to be given to landowners within a larger radius). Notice must be given at least 4 working days prior to the poison being laid.
  • dispose of all uneaten bait and all animal carcasses, including those on neighbouring properties.
  • display ‘1080 poison’ notices on gates and fence lines, for at least 28 days after laying the poison.

Chemicals affecting organic farms

veg_growing.jpg

In the case of organic farming, contamination by any chemical at all could have an adverse effect on your business and possibly cause you to lose your accreditation. Therefore, it is important to be aware of the activities around you and how they may affect your organic status.

The very first step is to notify the relevant landowner (or business / forestry operator) that you operate an organic farming enterprise. Inform them of your position with regard to soil and water quality and seek assurances from them that their operations will not affect the viability of your business.

If you are concerned about nearby logging operations, ask for a copy of the Forest Practices Plan for the land – check for buffer zones and conditions regarding chemical use, including herbicides and fertilisers. If you have questions about how the forestry operations will be carried out, ask the operators.

You can also contact the Minister for Primary Industries and Water and ask her or him to issue a specific order controlling or prohibiting agricultural spraying on the property. You will need to justify the order on the grounds of protecting “susceptible plants and stock, public health, the environment and trade”. The Minister will consult with the Minister for the Environment before making a decision about whether to issue an order.

⇔ For information about certification or government assistance for organic farming, contact the Tasmanian Food Opportunities Unit within DPIPWE. You can also visit the Organic Coalition Tasmania website for details of current projects.

Genetically Modified Crops

GMO crops are causing considerable concern throughout the world because they have been developed at a faster rate than governments have been able to regulate them and assess their effects.

All three levels of government in Australia have been trying to grapple with this issue.

At the federal level:

The federal Gene Technology Act 2000 came into force in June 2001. This Act institutes a set of regulations that are applied nationally, administered by the Gene Technology Regulator.

At the state government level:

Provisions have been made for limited exemptions to the moratorium under section 99 of that Act – principally for existing poppy crops and open-air trials for non-food crops, and enclosed food and animal trials.

:!: The government recently announced it would commence a review of the moratorium, to determine what action will be taken when the current moratorium expires. Keep an eye out for opportunities for public comment.

  • Since November 2005, the whole state has also been declared a GMO-free area under the Genetically Modified Organisms Control Act 2004. This Act also provides for a strict licensing regime for research into GMOs within Tasmania. Under the Act, any person producing, selling or otherwise dealing with a GMO in a designated GMO-free area, without both a permit and a GMO licence will face a fine of up to $260,000 (s.7).
  • GMOs are also regulated under the Gene Technology (Tasmania) Act 2012. This Act was introduced to align state laws with the Commonwealth Gene Technology Act 2000, which uses the Precautionary Principle as a basis for its regulatory framework and includes a range of strict liability offences.
  • The Biosecurity Policy and Strategy was developed by the state government in 2006. It sets out a number of policy objectives for maintaining the low level of pests, diseases and weeds in Tasmania. The Policy provides that before a potential disease/pest is imported to Tasmania, it must be assessed against particular criteria, including whether it poses a suitably ‘very low risk’.
    ⇔ Click HERE to download the Biosecurity Strategy 2013-2017, which seeks to implement the Policy.
Opportunities for Public Participation:
  • Under the GMO Control Act, a “person aggrieved” may appeal against permit conditions (☛ see Section 30).
  • Under the Gene Technology Act 2000, where significant risks are posed to the health and safety of people and the environment, the public may make written submissions about applications for licences and risk management plans. The Regulator may hold public hearings (section 47) and, after considering submissions, may issue a licence only if satisfied that satisfactory risk management measures are in place.
  • an aggrieved person or the Regulator may apply to the Federal Court for an injunction where a person is about to contravene or is contravening the Act or regulations (☛ see Section 147).
  • The Regulator must keep a register of low risk ‘product dealings’ (see section 74 and 75) and a record of all GMO and GM ‘product dealings’ (see section 77 and 78).
    ⇔ Contact DPIPWE or look on its Website for information about its policies and rules on GMO crops and organisms.
Contacts - for GMO information
Federal
State
  • Organic Farming Branch (DPIPWE)
    13 St Johns Avenue, New Town 7003
    Ph: 03 6233 6812
Non Government

Contaminated Land

As residential areas expand, there has been increasing redevelopment of land that was previously used for industrial activities, such as petrol stations and landfills.

This has made land contamination a major urban issue, and has increased awareness of the health and environmental risks associated with such sites.

Part 5A of the Environmental Management and Pollution Control Act provides a comprehensive system for the management of land contamination in Tasmania.

What are contaminated sites?

An area of land (including water in or under the land) will be a “contaminated site” if:

  • The land contains a pollutant in a concentration above naturally occurring levels, which is (or is likely to be) causing environmental harm (including serious or material environmental harm and environmental nuisance); or
  • The land contains a pollutant in a concentration above naturally occurring levels, which is likely to cause environmental harm if not managed appropriately; or
  • A site management notice is registered on the title for the land (see section 74A(2)).

However, land is not a ‘contaminated site’ if the relevant pollutant is a ‘prescribed pollutant’ or is present on the land because of ‘prescribed circumstances’ (see section 74A(3)). To date, no pollutants or circumstances have been prescribed under the Act.

Who is responsible for managing contaminated sites?

The management of contaminated sites is shared by the Contaminated Sites Unit (within the EPA Division), and local councils.

Generally, the Contaminated Sites Unit is responsible for managing known contaminated sites, investigating potentially contaminating activities and dealing with specific pollution incidents.

Local councils are responsible for regulating development through their Planning Schemes to ensure that sensitive uses are not located on or near contaminated sites.

The Tasmanian Planning Commission has prepared a 'Planning Advisory Note – Contaminated Land' to assist councils to assess applications to amend planning schemes where land is, or may be, contaminated. The Commission is currently developing a statewide Planning Directive to ensure that all planning schemes in Tasmania contain the same provisions in relation to the assessment and management of development on contaminated land.

How is contaminated land regulated?

If a person causes land to become contaminated, they could be prosecuted for causing environmental harm under EMPCA (☛ see Chapter 6). It is also an offence not to report any pollution incident.

:!: If you believe that land has been or is being contaminated, contact the Contaminated Sites Unit and ask them to investigate (see below).

Under the Building Act 2000 you must not carry out any building work on land that is “…contaminated, unhealthy and not suitable for the purpose until the land is cleaned or remedied…”. If a council suspects that a development site may not be suitable for its proposed use, the council may require a developer to demonstrate that the land is not contaminated. For example, if the council is aware that a potentially contaminating activity was carried out on the site a decade ago, the council may ask the developer to investigate whether any residual contamination exists and carry out work to rehabilitate the land before any further development can take place.

Reporting contaminated land

Any owner or occupier who knows or should reasonably know that land is likely to be contaminated:
  • Must not commence or continue any activity that is likely to cause or continue to cause the release or escape of pollutants; and
  • Must notify the Director of details of the pollutant present on the property and any actions they have taken to manage or mitigate the impacts of the pollution (section 74B).

Landowners and occupiers are required to notify the Director even if it means that they will incriminate themselves for having caused environmental harm (section 74B(3)).

For new contamination, notice must be given within 24 hours of discovering that the land is contaminated (such as when you receive test results showing contamination). If the contamination already exists, the owner or occupier must notify the Director within 6 months of the date that the new provisions commence (section 74B(1)(b)).

Strict penalties will apply for failing to notify the Director that land may be contaminated - maximum fines will be up to $65,000 for an individual and $130,000 for a company.

There are no specific provisions allowing third parties to report that land is, or may be, contaminated. If you are concerned about land in your area, you should contact the Contaminated Sites Unit and ask them to issue an investigation notice (see below).

Investigation, remediation and management of contaminated sites

Under Part 5A, three different types of notices may be issued in relation to contaminated sites:


  • Investigation notice - can require work to determine whether land is contaminated, the types of pollutants that are present and the extent of the contamination, the extent of environmental harm that has already been caused and what site management measures are required. (section 74E)

For example, an investigation notice can require one or more people to take samples from the land, carry out tests and analyse data, install groundwater bores and submit progress reports to the Director.


  • Remediation Notice - can require one or more people to take action to ensure that people, animals and the environment are protected from harm, or further harm, as a result of the contamination. (section 74F)

For example, a remediation notice can require one or more people to carry out testing, to erect fences, wall or bunds to contain the pollutant, to remove the pollutant and remove or treat any contaminated soil, water or rock. The notice can also require the site to be wholly or partly vacated or entry to the site to be restricted.


  • Site Management Notice - can be issued to ensure the safe management of a contaminated site. (section 74G)

Site management notices can require ongoing monitoring for the site, restricted access to the site and any other action to minimise the risk of the pollutant escaping or causing harm to any person or the environment.

For each kind of notice, the Director can also require the responsible person to hold public meetings to inform the public about the progress or the investigation or remediation and the ongoing management of the site.

How are investigations carried out?

The National Environment Protection (Assessment of Site Contamination) Measure 1999 adopts national best practice standards for technical assessment of land contamination. This Measure (the ‘NEPM’) has the force of a State Policy in Tasmania (☛ see Chapter 4).

:!: The NEPM (Assessment of Site Contamination) was updated in May 2013. Make sure that you are referring to the most current version of the NEPM when dealing with site contamination.

If a potential contaminated site has been reported to the Contaminated Sites Unit, an investigation is carried out in a staged approach. The contaminated site investigation process has five stages:

  • 1. Environmental Site Assessment - the first stage sees the site being subject to an Environmental Site Assessment or ‘ESA’. This is done in order to find out the status of the contamination and the potential risks it may pose to human health and the environment. This evaluation is done in accordance with both the NEPM and the EPA reporting standards.
  • 2. Detailed ESA - the second stage involves taking a number of samples from the contaminated site that measure the extent of the contamination in the air, soil and water sources.
  • 3. Remediation - the third stage focusses on cleaning up the affected area by either treating the site or excavating the contaminated soil.
  • 4. Validation - the fourth stage of the process makes sure that remediation has been successful and that there is no risk to the land based on either the current or proposed land use.
  • 5. Monitoring - this final stage ensures that the site is monitored to ensure that contamination levels are decreasing and that remediation is working.

⇔ Click HERE for more details about the investigation process.

Who is responsible for dealing with contaminated sites?

'Investigation' and 'Remediation' notices can be served on any person that the Director reasonably believes is likely to be wholly or partly responsible for the contamination. This could include the current and former owners or tenants and any other person whose activities may have caused the contamination.

The current or former owner, occupier or person in charge is taken to be responsible for the contamination if the person knew, suspected or should reasonably have suspected that the land was contaminated AND allowed or possibly allowed the pollutant to continue to be discharged (sections 74E(3) & 74F(3)).

'Site Management' notices can be served on any person that the Director reasonably believes is likely to be responsible for the contamination, or the current owner or occupier (even if they were not responsible for the contamination) (section 74G(2)).

Each notice must specify what actions must be taken and who is responsible for taking them. If notices are issued to more than one person, the notice must set out what proportion each person is responsible for, having regard to their contribution to the contamination (section 74D).

Notices bind the person that they are served on, even if they sell the land (section 74I(6)(b)). The notice may also state that the obligations under the notice can be passed on to future owners of the land (sections 74D(3) & 74I(6)©).

Copies of all notices must be served on the current owner and occupier, the local council and anyone with a registered interest in the land. If the person who is required to carry out work under a notice is not the current owner of the land, the current owner or occupier must let them on to the land to carry out the work (as long as they are given at least 3 days notice). They must carry out the work with as little interference to the current owner as possible, and must make good any damage to the land (section 74R).

Sign off process

The ‘sign off’ process is essentially written confirmation that certain guidelines have been met in relation to the investigation of a site. The process also involves an assessment as to whether the site is fit for its intended use.

When dealing with some issues such as sensitive land use re-zoning or development approval for works that could impact human health and the environment, planning authorities such as local councils can write to the Director of the EPA and the sign-off process is triggered.

However, as planning authorities are ultimately responsible for ensuring whether a particular site is appropriate for its intended use, they can also independently make a decision about whether the site is suitable and if conditions need to be imposed on the applicant.

⇔ Click HERE for an information bulletin about the Site Contamination Sign-Off process.

What if the person responsible for the contamination cannot be found?

Investigation and remediation notices can only be served on a current owner who was not responsible for the contamination if:

  • they became the owner after the new provisions commence and knew or should have known that the land was contaminated; and
  • the Director has taken all reasonable steps but cannot successfully identify the person who is responsible for the contamination or the person who was responsible for the contamination is bankrupt (sections 74E(4) & 74F(4)).

Site management notices can be served on the current owner or occupier, even if they did not cause the contamination or know about it when they purchased the land (section 74G(2)(b)).

If a company that was responsible for the contamination has, within the past two years, been wound up or transferred its assets to another company, a notice can be served on any related company (section 74Y).

If no owner or responsible person can be identified, the Director can carry out investigation and remediation work and try to recover the costs later (s.74T).

Appeal rights

Anyone who is served with an Investigation, Remediation or Site Management notice can appeal to the Resource Management and Planning Appeal Tribunal within 14 days (section 74O).

Appeals must be lodged within 14 days.

:!: Lodging an appeal does not automatically suspend the notice. Unless the Director consents to the notice being suspended, the person served with the notice must still comply with the obligations under the notice (including action to prevent the escape of the pollutant). If their appeal is successful, they can recover the costs of any actions they took under the notice from the government (section 74O(3)).

Enforcement

Any person who is served with a notice must comply with it, or face a fine of up to $65,000 for an individual and $130,000 for a company (section 74P).

If the person does not take the action required by the notice, the Director can take action and recover the costs from the responsible person. The Director can also require any person served with a notice to pay the costs of investigation and monitoring compliance (such as reviewing progress reports) (section 74N).

The Director, a council officer or any person with a ‘proper interest’ (such as an affected neighbour) can take civil enforcement proceedings in the Tribunal against a person who is not complying with a notice under Part 5A (☛ See Civil Enforcement).

If all the actions specified in the notice are complied with, the Director can issue a Completion Certificate. The Director can also revoke a notice at any time. If a notice is revoked or a certificate is issued, the Registrar of Titles will remove the notation on the title for the property (section 74K).

Where can I find out more about contaminated sites?

Once a notice is served, a notation will be recorded on the Title for the contaminated site (section 74I). Anyone who does a title search for the property will see that it is contaminated, or being investigated to see if it is contaminated.

Owners must notify the Director if they plan to sell any property that is subject to an investigation, remediation or site management notice (section 74Q).

The Contaminated Sites Unit will conduct searches for information relating to land and groundwater pollution on a property. There is a charge for this service, and it will take 10 business days to complete.

⇔ Further information about contaminated site searches is available from the Contaminated Sites Unit.

Contacts (Contaminated land)

  • Incident Response Line:
    Ph: 1800 005 171 (Emergency situations)

Further information & useful contacts

Primary Industries Library:

This useful library holds information on agricultural and fisheries issues. The main branch is based at:

13 St. Johns Avenue, New Town, 7008. Ph: 03 6233 6854. There are also smaller branches in Hobart Ph: 03 6233 6418 and Prospect 03 6336 5241.

It will be useful to obtain copies of:
GOVERNMENT
  • Chemical Management Branch (DPIPWE)
    Stuart Bowman: Registrar of Chemical Products and Chemicals Coordinator
    165 Westbury Road, Prospect 7250
    Ph: 03 6336 5462 Fax: 03 6336 5374
    Email: Stuart.Bowman@dpipwe.tas.gov.au
  • Spray Information and Referral Unit
    Peter Lee-Archer: Coordinator, Spray Information & Referral Unit
    165 Westbury Road, Prospect 7250
    Toll Free Number: 1800 005 244
    Ph: 03 6336 5252
    Email: Peter.Lee-Archer@dpipwe.tas.gov.au
  • Agricultural and Veterinary Chemicals Advisory Committee (refer to Chemical Management Branch contact)
  • 24 hour Pollution Incidents & Complaints Hotline: EPA Division
    Ph: 1800 005 171 (freecall)
NON-GOVERNMENT
  • Tasmanian Organic-Dynamic Producers (TOP)
    PO Box 13 Campbell Town TAS 7210
    Ph: 03 6381 2004 or Fax: 03 6381 2008

Relevant laws

Commonwealth Legislation


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