Determining who is in management and control of crown land with a committee of management

The fictional Peninsula Bike Trail runs on crown land between two coastal towns. In the 1980s, the government appointed a committee of management to look after the trail. The committee is a volunteer group called ‘Friends of the Peninsula Bike Trail’. 

The committee is aware of contaminated land duties. These are under the Environment Protection Act 2017. They understand they may be responsible for complying with the duty to manage. 

Trail activities include bike riding, walking, and horse riding. The committee undertakes general gardening and minor maintenance on the trail. They have a depot site on the trail land. Here they store a small tray truck and maintenance equipment. They also store chemicals for weed control. They fuel the truck at a local service station, so don't store fuel on site.

The committee thinks it's unlikely bike trail activities have caused contamination. But the committee knows that the bike trail runs through a former army shooting range. The federal government gifted it to the state in the 1970s. The committee knows that shooting ranges are likely to cause contamination. They don't know if a contamination assessment has been completed for the shooting range.

The committee contacts the government department responsible for crown land.  They discuss their respective duties. They agree they both need to manage risks from their activities. This is to meet the general environmental duty.

The committee agrees to share its register of pollution incidents. These could be from trail use or maintenance. The committee also agrees to review chemical use and storage practices. This will help avoid further contamination.

Both agree that contamination from historic land use is the government's responsibility. The government will prioritise assessment and risk management of contamination from past use. This will include considering the former shooting range. The government will share its information with the committee. This may include information on the risks from the former shooting range.

Determining who is in management or control of land under a lease agreement

A vehicle repair business called Lottie’s Garage operates from an industrial property. They rent the property through a long-term lease with the Paulette family. Before the current site use, the Paulette family operated a service station at the site. The service station sold fuel stored in several underground storage tanks. Lottie has never sold or stored fuel at the site, but the old underground storage tanks still exist at the site.

Lottie hears about the new contaminated land duties. The duties apply to those in management or control of land. This includes the duty to manage contamination. 

Lottie learns that old underground fuel storage tanks may be a contamination source. There are some at her garage. Lottie checks her lease agreement to find out if she might be the person in management or control. Lottie finds that the lease does not address the matter. Lottie wants to make sure that her business is meeting all its legal duties. She also want to take all steps to ensure the safety of her staff, customers, and neighbours.

Lottie contacts her landlords to discuss the contaminated land duties and her lease. She informs her landlord that the old underground storage tanks might cause contamination. Lottie asks the landlords to assess the potential for contamination at the site. Both parties consider the EPA guidelines on the duty to manage. They also consider whether they need legal advice on their degree of management or control.

Based on this, all parties come to an agreement that the landlords will undertake an assessment of the site. Lottie agrees to provide access to the site for the assessment - including to contractors.

Both parties work together and take steps that are within their control. This ensures both parties will be able to prove that they are meeting their components of the duty. If the assessment identifies risks at the site, the assessor may recommend risk controls. Lottie may have to adjust the use of her site in response to the assessment recommendations. She may also need to allow access for contamination remediation works, if needed.