New law will enforce remediation of polluted land
Provisions relating to "contaminated land" will have far-reaching implications for land buyers and developers when the new National Environmental Waste Management Bill becomes law.

So says Glendyr Nel of Shepstone & Wylie Attorneys, who notes that although current environmental legislation already imposes a duty of care and remediation of environmental damage on anyone who "has caused or may cause significant pollution or degradation", it has been held that this cannot be applied retrospectively.

“This has meant, to a large extent, that one man's contamination simply became the next owner's problem.

“Now, however, this will no longer be the case. Land on which specified high risk activities are taking place or have taken place, or land that is merely suspected of being contaminated, may now be identified as an ‘investigation area’.

“And this is now definitely retrospective in effect. What is more, the determination of a ‘significant risk of harm’ is now exceptionally wide and even includes situations where harm in the future is reasonably foreseeable.”

The procedure will be that the owner of an “investigation area” is obliged to conduct a site assessment to determine the presence and level of contamination. If the assessment confirms contamination, then the land concerned will be declared a "remediation site" and placed on a contaminated land register. A remediation order will also be issued, stipulating the measures that have to be taken and the time frames within which these must occur.

Most importantly, notes Nel, land that is declared a “remediation site” will not be able to be transferred without the permission of the Minister or MEC, who must first be satisfied that the person to whom the land is to be transferred is willing to undertake the necessary remediation.

Potential purchasers will thus need to be aware of the serious implications of buying contaminated land, not least of which is the knowledge that non-compliance may result in fines of up to R10m or imprisonment of up to 10 years, or both.

The Bill is due to be tabled in Parliament in July.

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