Australia: Proposed new Remediation of Land SEPP 55, in NSW

Last Updated: 8 February 2018
Article by Breellen Warry and Rebecca Kazzi

Most Read Contributor in Australia, August 2018

The State Environmental Planning Policy No 55 - Remediation of Land (SEPP 55) and the associated Contaminated Land Planning Guidelines were introduced in 1998 as a framework for the management of contaminated land in NSW.

The NSW Government is currently in the process of reviewing all State Environmental Planning Policies (SEPPs). As part of this broader review, SEPP 55 is being evaluated in order to establish a modern approach to the management of contaminated land. To this end, the NSW Government has released an Explanation of Intended Effect (EIE) and Draft Contaminated Land Planning Guidelines (Draft Guidelines) which outline the proposed newly formed Remediation of Land SEPP (Proposed SEPP).

Some of the key features of the Proposed SEPP are:

Categories of remediation work

The Proposed SEPP will maintain the current two categories of remediation work:

Category 1 remediation is work that requires development consent and presents elevated risk, either during execution or in the event of unsuccessful incomplete remediation. It has been proposed that all Category 1 remediation works be set out in a detailed schedule that describes the new classes so as to easily determine which works require consent. The new schedule will incorporate the provisions of clause 9(a)-(e) of the existing SEPP 55.

Category 2 remediation work will retain its current SEPP 55 definition, as works that do not require development consent.

The Proposed SEPP will still impose a requirement for proponents to notify local councils prior to, and after the completion of remediation works for Category 2 works. In addition however:

  • the notification must be accompanied by certification from a certified contaminated land consultant and will be required to demonstrate that the land consultant has reviewed all relevant data relating to the site and is satisfied that it is sufficient to support the remediation methods
  • post-work notification will need to specify that the work has been completed in line with the remediation plan and make note of any ongoing environmental management requirements
  • standardised operational requirements would be introduced for Category 2 works which relate to hours of operation, soil management and dust and noise control.

Local requirements for remediation

The Proposed SEPP will remove a provision giving effect to council policies that specify local requirements for the management of contaminated land (clause 9(f), SEPP 55). This will have the effect of streamlining all works into either Category 1 or Category 2. The Proposed SEPP will also waive the existing clause 7 requirement, which obliges applicants seeking to change the use of land to provide the consent authority with an investigation into whether the land is contaminated in specified circumstances.

Requirement to consider contamination and remediation in zoning or rezoning proposal

The Proposed SEPP proposes the removal of the existing clause 6 in SEPP 55 which sets out matters to be considered by a planning authority when preparing an environmental planning instrument. This provision will instead be transferred to a section 117 direction. This direction will be supported by the revised Contaminated Land Planning Guidelines, which will provide guidance on contamination issues to be addressed at the rezoning stage.

Relevantly, the clause 6 of SEPP 55 was discussed in the recent decision of Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd (No 2) [2017] NSWLEC 186, perhaps highlighting the current issues with the existing SEPP 55 framework and relevant rezoning provisions under the Environmental Planning and Assessment Act 1979 (EP&A Act).

The Land and Environment Court (Court) had to determine whether certain council resolutions and a Gateway Determination for a planning proposal were invalid on the basis that there was a purported failure to comply with cl 6 of SEPP 55. However, the Court found that there was no intersection between the legal requirements of cl 6 of SEPP 55 and ss 55 and 56 of the EP&A Act. The scope of cl 6 is confined to the preparation of an environmental planning instrument (EPI). The Court stated that the operation of s 55, the making of a planning proposal, or s 56, the making of a gateway determination, could not properly be described as the preparation of an EPI.

Draft Guidelines

The Draft Guidelines are aimed at assisting planning authorities in addressing land contamination issues and assessing development applications for remediation works. Similar to the current guidelines, the Draft Guidelines are separated into six sections which:

  • sets out the legislative framework for the management of contaminated land. This includes advice on the use of Principal Certifying Authorities where remediation is required
  • provides advice for authorities on undertaking initial evaluations for the potential for land to be contaminated
  • explains the key processes in investigating and remediating contaminated land
  • assists planning authorities in responding to information about land contamination
  • outlines record keeping and information
  • provides information on preventing future contamination.

Implementation and consultation

Should the Government choose to proceed with the implementation of the Proposed SEPP, development applications already within the planning system and those where notice of proposed works have already been provided to the local council will not be affected by the changes.

The Department of Planning and Environment has undertaken preliminary consultation with councils, contaminated land consultants and the Environmental Protection Authority during the early review. The EIE and Draft Guidelines are now open for public comment. Submissions close on 31 March 2018.

Should you require any further information about the Proposed SEPP or Draft Guidelines, please contact the author.

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

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