The Lay of the Land: Water Licencing, Vegetation Management and Contamination

Rural property in Queensland — part two of three

Water allocations, vegetation management, contamination and biosecurity obligations are just a few important matters for buyers to consider before purchasing rural property in Queensland. The results of these investigations may prevent a buyer from using rural land as intended.

This is the second part in our three part series of articles on rural property in Queensland.

Water allocations and licencing

Water rights and access are often overlooked or misunderstood in rural property transactions. Generally, when a buyer is acquiring a property, they may expect or assume that water will be accessible or available in some way. However, if a property is not connected to town water, it may be that the property is near a body of water in relation to which the owner can apply for rights to access and use instead. Depending on the body of water, this may be authorised by the relevant authority by grant of a water allocation or licence.

A water licence is an authority granted under the Water Act 2000 (Qld) to take water and/or interfere with water. In relation to rural property, water may be required for:

1. stock or domestic use on lands that do not adjoin a watercourse, lake or spring;
2. irrigation;
3. industrial or commercial use;
4. storing water behind a weir;
5. impounding water behind a storage structure; and
6. storing water in excavations that are within or connected to a watercourse.

Failure to identify that there is a water licence or allocation to be transferred as part of a purchase may mean a buyer doesn't have access or rights to water after settlement. It is important to identify this at an early stage and make the appropriate arrangements.

Consideration must be given to any water entitlements, the issuing of any notices to transfer those entitlements, and allowing adequate time under the contract to obtain the requisite transfer notices. There may also be circumstances where water entitlements are managed under a distribution operations licence, which means the seller will have to provide the licence to the buyer with an appropriate disclosure statement prior to entering into any contract of sale.

Vegetation management

The Queensland Government offers a vegetation management report which identifies the type of vegetation on a property, the requirements of vegetation clearing, and any other laws that might apply. The report contains several maps, including:

1. the regulated vegetation management map, to determine the relevant assessment category;
2. the vegetation management supporting map, detailing information on regional ecosystems, wetlands, watercourses, essential habitat and other factors;
3. the protected plants flora survey trigger map, to determine whether any part of the proposed clearing is within a high-risk area; and
4. the koala habitat area and priority area map.

The results of these searches will impact what a buyer can and cannot do on the property with respect to vegetation. A failure to adhere to the requirements within certain vegetation areas is an offence which can result in penalties and potentially imprisonment. Any notice issued due to non-compliance will pass to the buyer and will remain enforceable.

Contamination

Buyers should also investigate whether the property is subject to the Environmental Protection Act 1994 (Qld), as the land may be recorded on the Environmental Management Register (EMR) or the Contaminated Land Register (CLR). Land is recorded on the EMR if certain types of notifiable activities have been or are being carried out on the land, or if the land is contaminated. If the property appears on the EMR, a buyer should engage a qualified person to conduct a site inspection. If the property appears on the CLR, it means the property was previously recorded on the EMR and it is now necessary to take action to remediate the land.

A property's absence from these registers does not guarantee that the land is not contaminated, as the relevant authority merely may not have been notified. It is recommended that buyers arrange a site inspection and/or a soil test as part of their due diligence.

A contaminated land search will show whether the land is listed on the EMR or CLR; what contaminants have been notified; what notifiable activities have been or are being conducted and notified; and whether there is a site management plan. It will not include contaminated land where authorities have not been notified, land on which an un-notified notifiable activity is being undertaken, or a complete list of activities or contamination affecting the land.

Should the seller not disclose to the buyer that the property is on either the EMR or CLR, there may be termination rights under the standard terms of the contract available to the buyer.

Chemical contamination

Investigating chemical contamination is particularly important where a property has been used for farming purposes such as cattle dips, as animals can accumulate contaminants from grazing on contaminated sites, having access to rubbish tips or industrial wastes, and from poor quality feed ingredients or fertilisers. Plant toxins can also contaminate animals and end up in food and animal feed products. Biosecurity Queensland samples and analyses Queensland-produced agricultural produce to monitor and minimise the levels of chemical residues and contaminants in plant and animal products.

Biosecurity requirements

Residents in Queensland are expected to know the basics about how to reduce the risk of spreading pests or disease and to be informed about problem pests in local areas. All Queenslanders have a general biosecurity obligation under the Biosecurity Act 2014 (Qld) to prevent the spread of pests, disease and contaminants. To meet that obligation it is recommended to:

1. stay informed about the pests and diseases that could affect or be carried by animals, including livestock and pets;
2. know what animals or plants can and can't be kept in Queensland;
3. understand what risks recreational hobbies may pose;
4. research the species of plants to avoid possessing or distributing an invasive species; and
5. contact local government to identify problem pests and diseases in the local area.

These requirements are particularly important for buyers who intend to purchase and use property for farming purposes.