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Contaminated Land Management - Guide for land owners, buyers and developers

Contamination Land Management for Councils of Central West NSW

Contaminated land is managed by Council to minimise the impacts of past land use on the orderly development of land in the future. Land may have become contaminated by actions in the past when issues around contamination, pollution and waste management were not considered in the same way a by the community s they are today and the long-term effects of some chemicals on the environment and human health were poorly understood.

The Environment Protection Authority (EPA) is the State body that regulates contaminated land under the Contaminated Land Management Act 1997; however local governments or councils has responsibility under the Environmental Planning and Assessment Act 1979 to ensure that when they consider land release and property development that they know if the land has been contaminated.   

To do this Council must:

•        Consider the likelihood of land contamination as early as possible in the planning and development control process;

•        Link decisions about the development of land with the information available about contamination possibilities;

•        Adopt a policy approach which will provide strategic and statutory planning options based on the information about contamination; and

•        Exercise statutory planning functions with a reasonable standard of care.

 

Your council may have a policy based on the Central NSW Regional Contaminated Land Policy Template. The policy will outline how Council will carry out the specific planning functions related to contaminated land and other matters such as the Underground Petroleum Storage System (UPSS) regulation and dealing with illegal dumping of contaminated waste.

 

Things to know:

NSW EPA website for land contamination matters

Planning Guideline There is more information in this document about how councils need to consider contaminated land matters and how formal contaminated land investigations are conducted.

Legislation

SEPP55, Part 7A EP&A Act, CLM Act, UPSS Regulation

Scroll down the page to find out more about...

 

 

Contamination and pollution - what is the difference

What is land contamination?

The definition of land contamination is very broad and is easily confused with pollution. In NSW contamination, pollution and waste are handled in different ways.

Land is considered to be contaminated when chemicals or substances are present in the soil, water or groundwater at concentrations that are above what they would be naturally in that area or locality. Those substances at that elevated concentration would also potentially cause harm to human health or the environment.

The difference between pollution and contamination is that generally pollution issues are dealt with relatively quickly, usually within a few days or months, however contamination issues can arise over a long period of incremental pollution or from incidents and practices from decades in the past.

In NSW most contamination comes from petrol stations or other areas that store large volumes of petrol and diesel, especially underground.

Other common sources are factories, sheep and cattle dips, storing chemicals and gas works. Anywhere where substances that can cause harm are stored or handled may have been contaminated. Also common places to look out for are anywhere that waste has been disposed of. This can include on-site disposal of general waste but also waste from industrial processes or illegal dumping of waste that should have been taken to an official approved landfill.

 

Potentially Contaminated land classification

 

Council’s policy is primarily about identifying land that has been used for a purpose that might lead to land contamination. Therefore, if a parcel of land has ever been used for a potentially contaminating activity whether or not actual contamination has resulted or if any actual contamination has been cleaned up then the land will be on Council’s system.

The information system will also help keep track of what investigations have been carried out on the land and the results of any remediation. Therefore land that is cleaned up or was proved to have not been contaminated does not have to be re-investigated for each development application.

Council’s policy classifies land in accordance to what is known about it.

Class A -  known or suspected past potentially contaminating activity or land use but no official reports to confirm whether or not the land is contaminated

Class B  - Council has a report on land contamination but it is either inconclusive or recommends further work be done

Class C  - Remediation has been carried out but not all the contamination has been removed. A management plan is in place to ensure that contamination does not cause any harm to the environment or human health.

Class D  - Land has been assessed or remediated so that it can only be used for certain types of uses

Class E  - Land has been assessed or remediated so that it can be used for all types of uses.

 

Owning Contaminated Land

Council does not have the authority to require any land holder to do anything with land that may be contaminated unless they lodge a development application. Contamination is treated differently to pollution and council can make someone clean up after a pollution incident.

Council also does not determine whether land is safe to use in its current state. This is the responsibility of the owner, however if the owner does consider that the land may be significantly contaminated they are obliged to notify the EPA. See the Duty to Report Guidelines for more details.

For most people owning contaminated land will not have a big impact on their day to day activities, however if there is a Site Management Plan for the land this may restrict use of parts of the land for some purposes. There may also be a restriction on whether you can grow fruit and vegetables or have poultry on the property. Details of these restrictions would be in a contamination assessment report or a Site Audit Statement which may be available from Council.

Development Applications

Any land that has been identified as potentially contaminated is very likely to need to have a formal site contaminated assessment before a development application can be considered. At the very least you should obtain a thorough land use history of the site to assess the risk of land contamination before lodging a development or rezoning application.

A site contaminated assessment is a formal report that must be carried out by a contaminated land consultant. For Councils using the Regional Contaminated Land Policy Template, as of 1 April 2017 the contaminated land consultant must be certified under a scheme approved by the EPA. Consultants can be found under “Environmental Consultants” in the Yellow Pages or contaminated land industry based business databases. Councils are not permitted to make a recommendation of a consultant you should use.

Stages of assessment

Contaminated Land assessment is divided into four distinct stages defined in the Planning Guideline and the EPA’s Reporting Guidelines.

These stages are:

  1. Preliminary Site Investigation – review of site history and preliminary soil and water sampling to define the nature of contamination.
  2. Detailed Site investigation – detailed soil, water or groundwater sampling to define the extent of contamination
  3. Remediation Action Plan – A plan on how to clean up or mitigate risks associated with contamination
  4. Validation and Monitoring – A report that confirms if remediation actions have been successful and if further monitoring or restrictions are required. A site management plan or environmental management plan may also be the outcome of a validation report.

Any of these stages may be required as part of a development application and your local council may need to have the report audited by an EPA accredited Site Auditor.

 

 

Remediation

Before buying or selling contaminated land you may decide that you want to remediate it to improve the value of the land, expand the possibilities of future uses or address environmental or health risks for yourself or the site users.

Voluntary remediation must be carried out under State Environmental Policy 55 Remediation of Land. This defines remediation into two types; Category one that requires consent from Council and Category two that only requires Council to be notified. Generally Category one will be any remediation that may impact on other environmentally sensitive land such as critical habitat, threatened species, heritage zones or land subject to flooding. You will need to check with your local council's contaminated land policy for details on where category one remediation is defined.

Category two remediation must be notified to Council 30 days prior to the start of works. Please use the SEPP 55 Category 2 Notification Form.

 

For both types of remediation a Notified of Completion is required within 30 days after remediation is complete and a Validation Report is required to be submitted to Council at the same time.

 

Planning Guideline, SEPP55, Reporting Guidelines Site Auditing

 

Selling Contaminated land

There are no restriction on selling contaminated land, however a section 149 planning certificate is required as part of a contract of sale. This certificate includes a range of details that inform a purchase about the planning restrictions of the land and includes the land zoning.

Council’s Policy includes the information that will be included on a s149 planning certificate for the different classes of land. The wording will indicate what past land uses Council is aware of on the land, if council has any site assessment reports, if further investigations are likely to be necessary and if remediation has been notified or approved.

The certificate will also indicate if the EPA is or has ever regulated the land under the Contaminated land Management Act 1997.

If you are wanting to sell land that is potentially contaminated you may wish to consider obtaining advice from your accountant or solicitor about the costs and benefits of carrying out a site assessment before putting the property on the market.

While the liability to remediate contaminated land most often falls to the developer as the trigger for assessment and remediation is most often redevelopment, if the land is significantly contaminated, the EPA has the power under the Contaminated land Management Act 1997  to make the polluter liable for remediation.

 

Rezoning Contaminated land

Before a rezoning or Planning Proposal can be considered, some form of contamination assessment is required. Depending on the area to be rezoned this may be a thorough land use history or may include a preliminary or detailed site investigation.

Details of the rezoning procedure can be found at your local council's web page and in their Contaminated land Policy. You should discuss the requirements with Council’s strategic planner.

 

Choosing a consultant

 

There are no specific qualification for contaminated land consultants but generally they will have environmental science or engineering qualifications. Council requires that consultants be certified under a scheme approved by the EPA.

They must be experienced in assessing the type of contamination related to the site and hold appropriate professional liability insurance.

Consultants can be found under “Environmental Consultants” in the Yellow Pages or in contaminated land industry based business databases.

Consultants should have a detailed knowledge of Council’s contaminated land policy and the legislation around contaminated land management.

It is recommended that your consultant contacts Council to ensure that they are aware of Council’s policy and the information Council holds about your land and if a Site Audit is anticipated from the outset.

 

Contaminated Land Site Audits

“As a general principle, a site audit is only necessary when the planning authority:

•         believes on reasonable grounds that the information provided by the proponent is incorrect or incomplete;

•        wishes to verify the information provided by the proponent adheres to appropriate standards, procedures and guidelines;

•         does not have the internal resources to conduct its own technical review.”

                                                                                                                                       Planning Guideline

 

A site audit may be required by Council in accordance with the Central NSW Regional Contaminated Land Policy Template. This will include on sites where:

•        Modified investigations threshold levels are used;

•        A risk assessment is relied upon for determination of suitability;

•        A groundwater investigation is not carried out where underground tanks or infrastructure has been identified;

•        A Site Management Plan is to be imposed; or,

•        Council does not accept the consultant’s recommendation;

Council can also require a site audit if it is considered necessary in accordance with the planning guideline recommendations.

You can find more information about the Site Auditor Scheme and a list of the Accredited Site Auditors on the EPA’s Site Auditor web site.

 



149 Planning Certificate provides you with information about the zoning and other planning restricting and permissions about the land in question. It will tell you what sort of developments can and can not take place including if the land is subject to heritage restriction, flooding, bush fire and other hazards such as land contamination.