When and under what circumstances does a person have an affirmative obligation to investigate land for contamination?
A statutory obligation to investigate land for contamination will arise: · if required by a permit condition; or · if the environmental regulator has a statutory power to and does in fact order it. Further, although it is not a strict ‘obligation’, the effect of recent amendments to the CLM Act is that companies could have a positive duty to proactively investigate land to determine the nature and extent of any historical contamination and involve the EPA at an earlier stage in the remediation process. A person may have a contractual obligation to investigate land for contamination if the terms of any relevant contract so provide. In this regard, it is not uncommon for contracts in Australia (and in particular, leases and licences in respect of land) to require a party who occupies land to investigate and, if necessary, remediate that land before completing the period of its occupation.
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