Guidelines for landlords and agents: Minimise your risk from the storage and abandonment of waste

Landlords and real estate agents need to be aware of the risks associated with tenants who store or manage waste on leased premises.

This guideline helps to understand the risks associated with illegally stored or abandoned waste.

What is the issue

Waste has the potential to cause harm to human health and the environment. The risk of harm increases when waste is improperly or illegally stored, managed, or disposed of. While the majority of waste and recycling operations are run responsibly, operators that face financial hardship or bankruptcy, and rogue operators might illegally store or abandon waste. When such choices are made it can be landlords that are left with the legal liability to clean up the waste and manage any ongoing risks, such as the management of contaminated land.

Landlords and real estate agents should be aware of the risks posed from illegally stored or abandoned waste, and the possible financial and legal consequences for themselves from their tenants’ actions. Undertaking due diligence can reduce these risks.

Typical types of illegally stored or abandoned waste include:

Construction and demolition waste
Materials containing asbestos
Contaminated soils
Medical and radiological waste
General commercial waste
e-waste, glass, plastics, tyres, polystyrene, etc.

The information below supports landlords and real estate agents to act diligently and help mitigate the potential risks to themselves, the environment, and their community.

Disclaimer

The information in this web page is for general guidance only. It does not constitute legal or other professional advice and should not be relied on as a statement of the law. Because it is intended only as a general guide, it may contain generalisations.

You should obtain professional advice if you have any specific concern. EPA has made every reasonable effort to provide current and accurate information, but does not make any guarantees regarding the accuracy, current or completeness of the information.

What can happen

There are many possible consequences of waste illegally stored or abandoned. Broadly, they can be characterised by risks to property, risks to the environment, human health and safety, and legal and financial risks.

It can damage your structures and contaminate your land

The value of your property can be harmed – if your property is damaged, becomes geo-technically unstable, or contaminated, the value of your property can be severely affected.
You could lose your buildings and structures to fire – combustible recyclable and waste materials illegally stored or abandoned are fire hazards. Fire from waste places the buildings and structures on your property at risk.
Your land can become contaminated – leaching or run-off from waste may contaminate your land. You have legal obligations to manage your land if it is or becomes contaminated. Contaminated land must be managed and may require remediation to make it suitable for its current use or its future use under the Planning Scheme.

It can cause harm to the users of your land, the environment, human health and your local community

There can be severe risks to the environment – leaching or run-off from waste pollutes land, surface water, and groundwater.
There can be severe risks to human health – illegally stored or abandoned waste can cause air pollution from dust and odour, attract vermin that are carriers for disease, contaminate stormwater as well as land and aquatic environments, and lead to human exposure to hazardous waste.
There can be severe risks to human safety – illegally stored or abandoned waste poses safety risks to the users of property due to site instability, chemical spills, and uncovered or exposed waste stockpiles.
Waste fires cause severe risks to human health and the environment – illegally stored or abandoned waste poses a fire risk, threatening human health and the environment through air, land and waterway pollution.

You can be liable for additional financial costs

You can be liable for costs to manage illegally stored or abandoned waste. Costs for clean-up measures, removing and transporting waste to a lawful place, reducing stockpiles of waste, remediation of contaminated land, legal fees, may be compounded by a loss of rental income.
If hazards such as a fire occurs , costs may also include contaminated land or waterway clean-up.
EPA may take action in response to illegally stored or abandoned waste. This may result in legal costs or cost recovery for any clean-up costs borne by EPA.

There are two important questions:

What steps can I take to minimise the risk of waste being illegally abandoned or disposed at my property?
What steps can I take to protect my property, myself, and the local community?

The following steps provide some checks and measures that you can take to minimise your risk.

Be risk aware - Be aware of the risks surrounding waste disposed or abandoned in regional or urban settings. EPA Victoria has multiple resources available, see the additional information page for more information.
Know your obligations, and those of prospective tenants. This includes:
1. Understand the EPA permission that may be required for activities on your land
  1. Most activities involving the acceptance of waste to a property now require an EPA Permission. Operating such waste facilities without the correct permission is an offence. Without first obtaining the proper permission, a person is prohibited from engaging in a prescribed waste activity.
  2. When a permission is applied for, in most cases, a fit and proper person (F&PP) assessment is completed. The F&PP demonstrates for the community that the person holding the permission exhibits the minimum standards of integrity, behaviour and capacity to perform the activity.
2. Understand the duties and obligations your prospective tenants must fulfil
  1. The general environmental duty applies to all Victorians. Prospective tenants must reduce the risk of harm to the environment and human health so far as reasonably practicable.
  2. Waste duties apply to businesses that generate or handle waste. The duties cover activities including the classification , transportation , and the disposal of waste to a lawful place. Waste duties apply in addition to the general environmental duty. Significant penalties may apply for breaching these duties.
3. If you become aware of abandoned or illegal disposal of waste at your property, know your obligations
  1. If you discover a pollution event that has, or is creating an adverse effect on human health or the environment at your property you should report it to EPA as soon as practicable.
  2. As a person in management or control of land, if your site has become contaminated you must also manage any risks of harm as per the duty to manage contaminated land.
  3. If your property has become contaminated to a level defined in the Environment Protection Regulations 2021, you have an obligation under the duty to notify EPA of the contamination.
Be diligent - Undertake due diligence and understand the operation proposed by a prospective tenant. This includes:
1. Check what operations and activities are proposed, the types of products or wastes that are to be stored or processes undertaken
2. Ask for evidence that all necessary EPA permissions have been obtained
3. Ask for evidence that all necessary planning permits and building permits are in place to use the land for the proposed activity
4. Take steps to ensure that the permitted use under your tenancy agreement is consistent with any authorisations and permissions applicable to that activity. Proposed site plans and supporting reports for the planning process may provide this detail
5. Undertake checks of your prospective tenant, entity, and its directors permitted by the law. Is there recorded history of non-compliant or illegal activity
6. Ensure regular inspections of the property are undertaken to verify your land is being used for the agreed and lawful use
7. Ensure the tenant has appropriate insurance and that it is up to date.
Seek professional advice - Obtain advice and services of a professional to assist with property management and lease agreements, ensuring provisions are included to address key risks.
1. You can engage a reputable property manager or agent
2. Seek legal advice to structure lease agreements that help prevent illegal or abandoned waste dumping
  1. Ensure lease agreements adequately address any rubbish, debris or waste left behind by tenants
  2. Consider seeking a security deposit to help cover the cost of any clean-up, should a tenant abandon waste.
3. Obtain insurance advice to ensure appropriate insurance policies are in place.

Skip bin company

The landowner had a handshake agreement with a skip bin company who wanted to use their industrial lot. The skip bin company used the site as a waste processing depot without a council planning permit or EPA permission.

The company was eventually evicted by the local council and left behind piles of mixed construction waste. The landowner received an EPA remedial notice and had to cover the costs. Cost to landowner: $10,000.

Wood materials fire

A company stored a large stockpile of wood materials without a council planning permit or EPA permission. The wood waste was not properly managed and caught fire. Smoke and airborne pollutants impacted the local community and businesses. Some businesses were closed for several days following the fire.

The property was contaminated from the fire, and the local waterway was severely impacted by firefighting water. The company responsible was investigated by EPA and by the local council. The landowner was required to carry out clean-up activities under an EPA remedial notice and was unable to lease the land for several years while the issue was resolved in court.

Cost to landowner: More than $1 million for environmental restoration and site clean up.