Register of Site Management Orders released in VIC & The trend to accessible data

Overview

Last month, I was busily preparing to present a contamination risk update for lawyers and conveyancers for an InfoTrack webinar (catch it here if you missed it!). In the course of preparing, I stumbled across EPA Victoria’s release of its new Register of Site Management Orders on its website (accessible here). This article gives a quick update about Site Management Orders (SMOs) as well as the bigger trend towards information accessibility by environmental regulators, including in Queensland and Tasmania.

SMOs - what are they and why are they relevant

SMOs are one of the “not-so-new” tools available to EPA Victoria under the Environment Protection Act 2017.

Under section 275 of the Environment Protection Act 2017, EPA Victoria may issue an SMO if it reasonably believes that long-term management of a site is necessary because land is contaminated, or there is harm or a risk of harm to human health or the environment from pollution or waste. As such, SMOs are the most serious of the remedial tools available to EPA Victoria and used circumstances where contamination is significant or complex requiring long-term management measures.

Under section 276(2) an SMO is a statutory charge within the meaning of the Transfer of Land Act 1958, as if the EPA is the person who benefits from the statutory charge. This means that under section 106B of the Transfer of Land Act 1958, the EPA may lodge with the Registrar of Titles a notice of a statutory charge, enabling the charge to be reflected “on title”.

A site management order is binding on—

(a) the owner, occupier or person that has the management or control of the land who is served with it; and

(b) each subsequent owner, occupier or person with the management or control of the land for the time being, as if each such person had been served with the site management order on becoming the owner, occupier or person with the management or control of the land.

They are therefore incredibly important for everyone concerned with a site, including both current and future owners and occupiers, prospective owners and lessees, even arguably neighbours.

The measures that may be set out in an SMO include, but are not limited to, any of the following (see section 275(7)):

• developing or implementing a plan for managing environmental risks on the site;

• installing management infrastructure or monitoring equipment;

• undertaking monitoring activities;

• reporting to the Authority or another specified person on specified matters at specified periods;

• notifying the Authority or another specified person if a specified event occurs;

• undertaking a specified course of action if a specified event occurs;

• maintaining or increasing any management control measures that are already being undertaken on the site;

• not carrying out, or allowing other persons to carry out, any specified activities on the site;

• not using the site, or allowing other persons to use the site, for specified purposes;

•  long-term or passive remediation actions.

All of which have the potential to create costly legal obligations, including the potential for the occupier of the site to be required to pay financial assurance to EPA Victoria.

Importantly, an SMO operates for the period specified in the order (if any) and may operate indefinitely.

The new Register of Site Management Orders

The new Register of Site Management Orders was published at some stage in the last few months (I couldn’t find any press releases as to the date of publication, so you may be well ahead of me if you were already aware!). Importantly, it includes SMOs dating back to January 2023. However, based on my quick review of a sample of those SMOs, none have been registered on title to date. Whilst SMOs are generally captured within the EPA’s Priority Sites Register, this is only updated monthly and the information on it may not be accurate, current or complete. Consequently, there can be (and are) sites listed on the Register of Site Management Orders that are not on the Priority Sites Register that are not on title. So consultants and property professionals should proceed with caution.

The trend towards accessible environmental data

Queensland

In June 2023, the Department of Environment and Science reportedly improved the searching capabilities for Environmental Authorities and Enforcement Actions on its Public Register Portal.

Tasmania

Following amendments to the Environmental Management and Pollution Control Act 1994 in 2022, which included section 23AA - a new power that gives EPA Tasmania the discretion to publish, provide or make available environmental monitoring information, EPA Tasmania has developed a Environmental Monit​oring Informatio​n Disclosure Policy to provide guidance on how the EPA intends to exercise the discretion to release environmental monitoring information. In 2024, EPA Tasmania plans to develop a web-based publication mechanism for the environmental monitoring information, that allows members of the public to search for and access documents associated with environmental monitoring information. Until then, all data environmental monitoring information received from permitted and licenced premises since 1 January 2022 is now available by request. According to EPA Tasmania, the following information is available:

• Annual Environmental Reviews

• Environment Protection Notices

• Site specific environmental monitoring reports that relate to approved discharge​s of pollutants beyond the area of the land/site

• Environmental Management Plans required to be submitted to the Director by permit, environment protection notice or licence condition

• Environmental surveys undertaken as a requirement of a management plan or condition, where the parameter being surveyed is beyond the area of the land/site or water

• Environmental monitoring reports required to be completed following the release of a pollutant beyond authorised discharge limits

• Environmental monitoring information requested and submitted under an Environment Protection Notice types 44(1)(a), (b), (c), (e), 44(1A) and 44(1B)

• Environmental monitoring and assessment information requested and submitted under a request to vary a permit by way of an Environment Protection Notice types 44(1)(d).

Conclusion

This blog is intended to be a quick flag about SMOs in practice. It is also hopefully a helpful reminder for clients to be aware of the increasing drive by Australia’s environment regulators to make environmental data accessible.

If this weren’t already on your radar, it should be, particularly as there increasing corporate focus on ESG. It is incredibly important for boards, C-suite and organisations of all sizes to connect the dots between ESG and environmental compliance (often managed by different teams), reporting and data (some of which will now, in some jurisdictions, be easily publicly available).

If you have any queries in relation to this blog, please get in touch.

The legal stuff

This article is aimed to be high-level, practical and thought-provoking. It is not a detailed description of environmental law in any particular Australian State or Territory. All States and Territories have different environmental laws. You should always seek independent legal or other professional advice on specific cases and before acting or relying on any of the content. All the information in this article and on this website and any downloads are intended only to provide a summary and general overview on matters of interest. It is not intended to be comprehensive nor does it constitute legal advice or establish a lawyer - client relationship. Whilst attempts have been made to ensure that the content is current, Gabrielle Guthrie and Guthrie Legal do not guarantee its currency. Copyright 2023