Upcoming Amendment to the Section 7 Statement

Particulars Relating to Environment Protection: Further Information Held By Councils

On Tuesday, 31 August 2010, the last of the “Land and Business (Sale and Conveyancing) (Site Contamination) Variation Regulations 2009” comes into effect. This amendment relates to the ‘Particulars Relating to Environment Protection’ and the information which is held by councils.

From 31 August, all councils will need to update their section 7 statements with the new site contamination provisions. These provisions need to be inserted after the building indemnity insurance section.  The new provisions provide:

"Particulars Relating to Environment Protection
Further information held by councils
Does the council hold details of any development approvals relating to—
(a) commercial or industrial activity at the land; or
(b) a change in the use of the land or part of the land (within the meaning of the
Development Act 1993)?
*YES/NO
Note—
The question relates to information that the council for the area in which the land is situated may hold. If the council answers "YES" to the question, it will provide a description of the nature of each development approved in respect of the land. The purchaser may then obtain further details from the council (on payment of any fee fixed by the council). However, it is expected that the ability to supply further details will vary considerably between councils.
A "YES" answer to paragraph (a) of the question may indicate that a potentially contaminating activity has taken place at the land (see sections 103C and 103H of the Environment Protection Act 1993) and that assessments or remediation of the land may be required at some future time. It should be noted that—
• the approval of development by a council does not necessarily mean that the development has taken place;
• the council will not necessarily be able to provide a complete history of all such development that has taken place at the land."

The “commercial or industrial” activities referred to in (a), have been further defined as those types of activities in the table under Part 1 in “Particulars Relating to Environment Protection” in the Land and Business (Sale and Conveyancing) Regulations 2010.

The response by a council to part (a) and (b) is either a “YES” or a “NO”. The note suggests that “If the council answers "YES" to the question, it will provide a description of the nature of each development approved in respect of the land.” This information should be readily available on the council’s development application register (which is required pursuant to regulation 98 of the Development Regulations 2008).

It is important to note that responses to section 7 enquiries are based on records that the council holds, not information that may be within the knowledge of individual council officers.   If the council does not have the details for all of the development approved on that land, then the relevant council officer can make a note indicating that not all approvals are shown. It will then be up to the vendor or purchaser to make further enquiries, if required.

For further information on this Briefly please contact Felicity Niemann on 8217 1336 or by email fniemann@normans.com.au or Yari McCall on 8210 1265 or by email ymccall@normans.com.au.

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