A number of landholders at Longford in Gippsland, Victoria are now in discussion with Exxon Mobil about a potential buy up of their land, following the discovery of the toxic chemical PFAS (per and poly-fluoroalkyl substances).
The substance was contained in firefighting foam that was used at the Longford gas plant for approximately 40 years up until 2008.
Tests have revealed levels of water and soil contamination above government health guidelines, with the chemicals leaking beyond the plant to neighbouring properties.
Exxon Mobil has indicated it is willing to negotiate with the owners of affected properties, but landholders should be very cautious of accepting early offers to buy their land.
Don’t sign away your rights
Victoria's Environment Protection Authority has recently issued a clean-up notice ordering Exxon Mobil to undertake a two-year audit of the site and surrounding land.
That means the full extent of contamination, and the success or otherwise of clean-up activities, is unlikely to be confirmed before 2020.
Landholders need to know the full extent of contamination damage before negotiating their claim for damage, so they can account for all losses suffered, including the impact on farming interests and livestock health.
Landholders should also be wary of signing any agreement that includes a clause releasing Exxon Mobil from legal claims. These are standard terms in settlement agreements, so landholders should seek the advice of an expert lawyer so they don’t sign away their future rights.
How far can PFAS spread?
There may also be a number of landholders further away from the gas plant who do not receive a buy up offer, but whose land is contaminated. Accordingly, the number of affected landholders will not be known until the full extent of contamination is confirmed.
However, we know from other cases like the Williamtown RAAF Base contamination near Newcastle that PFAS can spread up to 18km from the source of contamination.
Anyone who thinks they might be in the contamination zone should seek expert legal advice.
What can landholders be compensated for?
Landholders affected by PFAS contamination should be compensated not only for any reduction in the value of their land, but for any additional losses and expenses that have been, or are likely to be, incurred as a result of the contamination.
Common items in such claims include:
- Compensation for any reduction in value of the land or loss on sale of the land caused by the contamination;
- Costs of purchasing a replacement property, if the land is sold or unusable for its intended purpose (including stamp duty, conveyancing costs, removalists costs, etc);
- Compensation for the loss of use of any land area required for remediation (such as dams fenced off to prevent livestock access);
- Losses caused by disruption to any business operating from the land;
- Additional business expenses incurred due to contamination (such as additional feed costs if pasture unable to be used for livestock);
- Costs of independent environmental testing or advice about the extent or impacts of contamination;
- Costs of professional advisors (including lawyers, accountants, etc); and
- Potential compensation for stress and inconvenience caused by the contamination.
In the news
Slater and Gordon Practice Group Leader Manisha Blencowe spoke to the ABC and warned landholders against accepting early offers:
“They did not choose to be in this position and it would be unfair to short-change them by trying to assess property values before the full extent of contamination is known.”
Manisha also spoke to the Gippsland Times and urged consultation with expert lawyers so landholders don’t sign away their rights:
“Landholders either need to know the full extent of contamination damage, or they need to negotiate the terms of the buy-up”.
The contents of this blog post are considered accurate as at the date of publication. However the applicable laws may be subject to change, thereby affecting the accuracy of the article. The information contained in this blog post is of a general nature only and is not specific to anyone’s personal circumstances. Please seek legal advice before acting on any of the information contained in this post.