Developer Contaminates Neighbour's Property

By Robin Mosman, Information and Referral Project Officer,
Lead Advisory Service (LAS) NSW

A Mosman resident's experience demonstrates the need for education of Council officers in lead awareness, and the importance of having firm, enforceable regulations and procedures regarding lead in place, if people redeveloping old buildings are to be accountable. Fortunately, the Council responded in this case, but WorkCover may have had more power to prevent the problem.

The Mosman resident had a frustrating and costly experience in 1996 when her property –which had been previously remediated – was contaminated by lead from a neighbour’s unsafe renovation and paint removal.

Three of the resident’s four children had previously had elevated blood lead levels as a result of the unsafe renovation of their own home. Safe remediation had since been carried out with professional advice, involving removal of all carpets, purchase of a HEPA vacuum cleaner and a change in house cleaning techniques.

The children’s blood lead levels were going down when the resident found out that the old house next door to her had been sold for development. She became worried on hearing that the developer planned to sand-blast the exterior paint from the house, because the previous owner, who had owned the house for 30 years, told her the paint definitely contained lead.

Following her objections, backed up by a letter from the children’s doctor, Mosman Council made the following consent condition:

"If it is proposed to sand or water-blast the dwelling to remove the existing paint, scientific evidence is to be provided as to whether there is any lead-based paint present, and if so the proposed methods of safeguards of its removal are to be submitted prior to its removal".

Proper testing needed

The developer provided a chip of paint to a firm of interior designers, who later said the test they did was negative. Council then gave approval for the work to go ahead.

It was at this point that the resident contacted the Lead Advisory Service (LAS), which spoke on the resident’s behalf to a Council officer. LAS established that there had been no quantitative analysis, and explained that in this sort of situation the integrity of the source of the sample must be established beyond doubt. As well, the sample should have been analysed at a NATA accredited laboratory. The Council officer agreed with this.

The resident then on LAS advice contacted the Mayor, who was very concerned and helpful. A meeting was arranged at the resident’s home with the Head of the Environment Section of Council and the Chief Surveyor. Following this meeting, it was announced that Council’s testing procedure would be completely turned around. Previously, all a developer had to do was produce a signed paper saying the paint had been tested by someone. Now, a sample had to be taken and tested by a NATA accredited laboratory.

The developer then claimed that the paint had been tested and contained only 0.05% lead, and that he was going to have it water-blasted from the exterior of the house. An on-site meeting was arranged with the developer, Council and EPA. The EPA strongly recommended against water-blasting, and it seemed at this point that the water-blasting would not proceed. Council actually wrote to the developer advising him not to proceed with it.

However, the EPA had admitted at the meeting that there were only guidelines about this, no laws or regulations that could be enforced, and the developer decided to proceed. Council and EPA advised of the precautions that would be necessary to prevent breaching of the Clean Waters Act, which was the limit of their power.

Worst fears realised

Two weeks later, the resident’s worst fears were realised. Contractors began water-blasting the neighbouring house, covering her back garden, soil and plants, with very small particles of paint.

The contractor had implemented some of the precautions required, but failed to ensure that they adequately protected her property.

She immediately contacted Council, who told her that legally they could not stop the work proceeding.

Desperate to have the lead danger removed, she sent her children away, kept the dog tied up and obtained quotes to have her yard cleaned up. The first was $4000, the second a little less. The second quote was for removal of 0.5mm topsoil where the paint flakes were; pruning and removal of foliage covered with paint flakes; and hosing paint flakes from walls.

On being told of EPA advice that a cheaper solution would be to simply turn over the soil to bury the paint flakes; dig in organic material to bind the lead chemically; provide the children with a sand pit for digging in and wash the children’s hands before eating, she explained that she was a single parent. She did not have an income that allowed her to take her small children out very much, and their garden was a very important leisure resource in their lives.

She said, "This is the children’s home. They’re used to being able to dig in the garden and grow their little carrots, and I’m not prepared to accept that they can’t do this because the soil’s been contaminated by the neighbour’s paint."

Resident pays; developer escapes

Under pressure at negotiations involving the Mayor and the General Manager for the Council, the developer offered $1,400 to cover the cost of cleanup. The actual cost to the resident was $4,250, a cost she could ill afford.

The resident had the work done. The developer did not pay her a cent.

At this point the issue of recovering costs became a civil one between the two neighbours. Council had required as a Consent Condition that adequate public liability insurance to the amount of $5 million be taken out by the builder or owner for the protection of adjacent property owners, but could not legally become joined in the action.

She then went to a solicitor who said it was a very clear case and engaged on a lengthy correspondence with the developer, which cost the resident a further $500, and ultimately established that the developer had no intention of paying anything voluntarily, and that to recover her costs she would have to take him to court.

Eventually, feeling that she could not take the financial risk of costs awarded by the court being less than her actual costs, and exhausted by the effort of pursuing the issue as well as taking total responsibility for the care of her four young children, she had to let it go. She still finds it distressing even to think about the injustice.

Ironically, she has since been told by a WorkCover representative that if she had contacted him on the day the work was being done, he would have been able to stop it.