Written by Soar Development Group (the landlord) leased premises to MRI (the tenant). The tenant operated the premises as an electronic waste management facility. When the tenant went into administration, they vacated the premises, leaving behind hazardous e-waste, including more than 180 tonnes of alkaline batteries and 20 tonnes of lithium-ion batteries.
Under the Protection of the Environment Operations Act 1997 (NSW), the NSW Environment Protection Authority (‘EPA’) issued a prevention notice to the tenant, requiring them to address the fire hazards presented by the abandoned waste and ordering for the removal of the waste from the site. However, the tenant failed to comply with the notice. The EPA subsequently issued a prevention notice to the landlord, ordering them to remove the waste.
Under the Contaminated Land Management Act 1997 (NSW), the EPA has power to issue management orders to landowners, which requires them to investigate and remedy contaminated land, even if the contamination has been caused by a tenant or some other third party. However, under the Protection of the Environment Operations Act 1997 (NSW), the EPA cannot issue a prevention notice to landowners. They can only be delivered to an occupier or person carrying out the activity in an environmentally unsatisfactory manner.
The proceedings initially commenced by the tenant, MRI, did not ultimately eventuate. However, Soar Development Group, the landlord, cross-claimed seeking an order to restrain the tenant from storing any batteries and dangerous or hazardous goods on the premises and requiring the tenant to remove all property, rubbish and debris. The Court found that due to the abandonment of the premises by the tenant, the landlord should now be considered the occupier, and thus was able to receive a prevention notice from the EPA.
This case illustrates the potential for landowners to be held liable for the management of abandoned waste of their tenants.