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Queensland’s Environmental Protection Act (Section 421) requires a vendor of land recorded on the Environmental Management Register to give notice to a potential purchaser prior to signing any contract to sell the land. The Queensland Court of Appeal has recently affirmed what constitutes written notice.
The decision examined notice provided by a seller via a data room.
Ultimately, the court confirmed that:
Prior to selling land, owners are required to provide written notice to a purchaser if the land is:
An owner’s failure to comply entitles a purchaser to terminate the contract prior to completion.
During the due diligence period, the seller uploaded numerous documents to a data room. These documents included a folder entitled Land Contamination which identified the contaminated lots. The documents were accessible and downloadable by the purchaser.
Express formal notice of the contaminated lots was not provided to the purchaser. However, it was argued the purchaser had notice in the form of data room records. The purchaser also sent an email indicating awareness of the contamination.
The unsuccessful buyer argued that access to the data room did not comply with Section 421 on 5 grounds;
The Court of Appeal held that the purpose of Section 421 was to ensure that an intending purchaser was aware of the liabilities that may go with the acquisition. So, the ultimate question is “did that seller give notice in writing that the land was on the register?” If so, the form of written communication is immaterial.
Albion Mill FCP Pty Ltd & Anor v FKP Commercial Developments Pty Ltd  QCA 229.
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