Environmental Protection Act – fixing a disclosure failure

Amendments to the Environmental Protection Act 1994 were passed on the 28th of October which, after commencement, potentially affect all Contracts for the sale of land in Queensland and will need to be considered for all contracts which haven’t settled by the time the Act commences.

You can access the amendments here. Some key issues and risks after commencement will be:

1. Issues concerning notice to be given to a Buyer pre-Contract dealt with in s421 will then be found in s408,

1. A new opportunity to correct a pre-Contract disclosure failure will exist under s408(5) whereby an owner can give the relevant notice after Contract providing a Buyer with 21 days to rescind the Contract failing which the Buyer’s right to rescind is waived. Critical implications after commencement:

Sellers

If pre-Contract disclosure is not given (under the existing s421 or the new s408) and should have been. It will be important to consider the risks of not providing the notice (e.g. termination up to the earlier of settlement or possession) as well as the risks of providing it (e.g. certainty -v- enlivening the issue).

Buyers

• contact us immediately if they receive such notice post-Contract,

• you will need to consider whether rescind / terminate the contract or do nothing waive your rights in this regard.