The danger and complications caused by old landfills
Old landfills pose a significant danger to the use and development of land. This danger is not restricted to the land on the landfill itself. Neighbouring land can also be at risk of contamination. Landowners need to be cautious when using land that could be near an old tip. It can be difficult to even know their location. Some were never lined and pose a considerable risk of off-site contamination. The management of these landfills also raises difficult challenges for current owners, operators and authorities.
The Environment Protection Authority’s Best Practice Environmental Management: Siting, Design, Operation and Rehabilitation of Landfills provides for buffers that state that no new buildings should be constructed within 500m of type 2 landfills (putrescible waste) and 200m of type 3 landfills (inert waste). This is not a hard and fast rule: buffer distances can be reduced by courts and tribunals if they receive sufficient evidence. Buffers are needed because of the potential for “gas migration”, a process by which gases escape and rise through the soil. Gas migration can lead to the contamination of nearby land with dangerous or explosive vapours.
Buffer zones did not always exist. They were first introduced by the 1991 State Environment Protection Policy (Siting and Management of Landfills Receiving Municipal Wastes), and were originally 100m from surface water and 200m from residential areas. Prior to this, however, landfills were established and closed, often without measures to prevent contamination. There are countless closed underground landfills throughout Australia. There is no public register or any other way to keep track of these landfills unless they become included on the EPA’s register of contaminated sites.
The EPA is currently in the process of writing new guidelines for the management of these landfills. Hubert Algie of our office assisted in writing a Law Institute of Victoria submission to the EPA on the draft guidelines, cautioning against an unfair burden on landowners near buffer areas. The submission also noted that the draft guidelines do not take account of groundwater or soil contamination, and do not require landfill owners to disclose vital information including EPA prosecution notices and/or test data, which can currently only be obtained by complex Freedom of Information applications.
Kellehers Australia has also been active in advising clients affected by methane gas migration from such a landfill. This can raise legal issues relating to damages and compensation and be linked to potential future development on the land. Since publication of the guidelines, some councils have introduced planning scheme amendments. Our experience with these is that they tend to apply a somewhat heavy-handed approach that seeks to shift responsibility from contaminators to land owners and developers. Neighbours seeking approval for very small projects, e.g. a new deck or small extension, can find themselves requested to undertake a site audit at their expense, rather than at the expense of the polluter.
Whilst it is important to ensure that changes in use or development of nearby land does not expose people to health hazards posed by contamination, it is also important to be clear as to who should bear the costs arising from these environmental hazards. It is undesirable that the overarching “polluter pays” principle should become undermined by conflicts of interest that see council or authority polluters, via the exercise of planning discretions, shift their responsibility for off-site effects of pollution to other owners.
Freeman Zhong and Hubert Algie
21 December 2016