Australia: Significant planning reforms proposed for contaminated land in NSW

Last Updated: 19 February 2018
Article by Claire Smith and Lauren Smith

The proposed Remediation of Land SEPP seeks to impose further obligations on those carrying out remediation work, particularly work that does not require development consent. The changes are intended to ensure that remediation of land is regulated consistently across the State and with a greater level of oversight.

The Department of Planning and Environment has announced its plans to repeal the current SEPP 55 and replace it with a new Remediation of Land SEPP. An Explanation of Intended Effect for the Remediation of Land SEPP (EIE) has been released along with a draft version of the Contaminated Land Planning Guidelines for comment by 31 March 2018.

The proposal is part of the State Government's broader review of the State Environmental Planning Policies in the NSW planning system. More importantly it represents the most significant revamp of this policy since its introduction 20 years ago.

The core aims and structure of SEPP 55 will be replicated in the new Remediation of Land SEPP. At a base level the policy seeks to promote the remediation of contaminated land to reduce the risk of harm to humans and the environment. The policy enables the carrying out of remediation works, subject to certain restrictions and regulatory control. Together with the guidelines it directs consent authorities as to what they must consider when determining applications concerning potentially contaminated and contaminated land.

Remediation work

The new Remediation of Land SEPP will continue to make remediation work permissible under the existing SEPP 55 categories: Category 1 and Category 2 remediation works. Changes are proposed however to each category, with particular focus on Category 2 remediation works.

Category 1 remediation work

Category 1 remediation work currently requires development consent and will continue to do so under the new SEPP. Clause 9 of the existing SEPP 55 outlines what constitutes Category 1 remediation work. Development consent is required for these works because they present a heightened risk to humans and the environment either in the carrying out of the works themselves or in the event the remediation is unsuccessful and latent contamination remains.

The works currently categorised as Category 1 include designated development works (under the Environmental Planning and Assessment Regulation 2000) or works carried out on or in proximity to sensitive lands. These categories will be largely replicated in the new SEPP. However, an additional 16 types of remediation works are proposed to be added to Category 1 because these works are typically complex requiring specialist expertise or there is a significant risk of impact on adjacent land such as on-site treatment of contaminated groundwater, remediation of hazardous ground gas and remediation of groundwater by either active bioremediation, in-situ or ex-situ thermal processes or chemical oxidation or reduction.

Additional categories have also been included where there is a long-term environmental management requirement, post-remediation monitoring or an on-site containment cell. Interestingly, there is no express threshold for such types of remediation works meaning that very small remediation projects could be potentially captured by these categories in the future.

Further, it is proposed that Category 1 works will now include any removal of stockpiled contaminated soil or excavated contaminated soil or other waste materials (including asbestos) where the volume of soil or material exceeds 3000m3.

If all 16 categories are adopted in the final SEPP, there will be a much greater oversight by consent authorities of remediation projects which do not currently need development consent and the ability to enable enforceable ongoing obligations to be included in development consents for those projects (eg. for post-remediation monitoring). This is likely to increase the lead times for these projects and the cost of carrying them out.

The changes to Category 1 are made to provide greater clarity for applicants and consent authorities. Initial consultation with councils and industry on this reform revealed that under SEPP 55 there had been instances where it was uncertain whether development consent was required.

Developers should familiarise themselves with these new provisions as development consent may now be required for works which previously did not require consent.

Category 2 remediation work

Under the existing regime Category 2 remediation work does not require development consent; instead it requires the applicant notify the council before works are carried out. A notice of completion is required for all remediation works.

Category 2 remediation works are defined in clause 14 of the existing SEPP 55 and exclude Category 1 remediation works. The Remediation of Land SEPP will replicate clause 14 but will update references to reflect legislative changes.

The most significant change to Category 2 is the expansion of the pre-remediation notification and the introduction of standard operational requirements.

Those carrying out Category 2 remediation works are already required to notify the council with specific details, generally 30 days in advance of works commencing. These details include brief information about the property, the works and the timeline for their completion.

In addition to this information, an applicant will now have to provide a remediation plan that is certified by a certified contaminated land consultant (whose qualifications have been confirmed through a certification scheme recognised by the EPA). Remediation plans were previously only required for Category 1 remediation works.

A new clause will be introduced to specify the matters to be addressed in a remediation plan. Much of the content will be borrowed from the SEPP 55 guidelines and the guidelines made pursuant to the Contaminated Land Management Act 1997. Broadly, the remediation plan will need to contain specific details about the proposed remediation methods, procedures, any validation sampling and analysis proposed and plans for reinstatement. It must also include certification from the certified consultant who prepared it that, having reviewed information on the contamination of the site, the remediation method and the categorisation as Category 2 remediation works are appropriate. Site contamination assessments or investigations prepared for the site must be provided as part of this notification.

The Remediation of Land SEPP will also introduce standardised operational requirements for Category 2 remediation works which will regulate site preparation and establishment practices, site and works management during remediation and validation procedures.

The EIE indicates that a fuller post notification process will be required for both categories of remediation work. The operational requirements for Category 2 remediation works include a validation report from a certified contaminated land consultant. The notice of completion for these works must now also confirm that the works were carried out in accordance with the certified remediation plan, state whether the land is suitable for the proposed use, and whether it is subject to any restriction or ongoing management requirements following remediation.

For all remediation works which require an Environmental Management Plan, a copy must be provided to the Council as part of the post notification process.

For those carrying out Category 2 remediation works that are not part of a larger development requiring development consent, the controls are more rigorous. The changes will increase the costs of these works, which now must include the cost of having a certified contaminated land consultant prepare, certify and validate a remediation plan. Improvements to site practices and management may be required to conform with new operational requirements. Developers are required to disclose more detailed information about their works and the site and can expect a higher level of oversight from consent authorities. The use of a certified consultant however may improve the quality of information for the works and provide a legitimacy that will encourage consent authorities to rely on and accept the information provided.

Development applications generally

The Remediation of Land SEPP will still require consent authorities to consider contamination when determining development applications more generally. The same tests and requirements in clause 7 of SEPP 55 will appear in the new SEPP.

Currently, a consent authority must consider a report on a preliminary investigation of land where the proposed development involves a change of use on certain land. The Remediation of land SEPP will give a new discretion to the consent authority to waive this requirement if there is evidence indicating that the land is not contaminated or is otherwise suitable for the proposed development.

Local council policies

Several local councils have prepared their own policies on contaminated land. The current SEPP gives effect to these policies as works which do not conform with any relevant council policy are considered Category 1 remediation work requiring development consent. The new SEPP will remove this provision. The Remediation of Land SEPP will alone determine the categorisation of remediation works and provide a consistent framework statewide.

Transitional provisions

The Remediation of Land SEPP will include transitional provisions so that development applications made prior to its commencement are regulated by SEPP 55. Category 2 remediation works notified at the time of commencement will similarly proceed under the repealed provisions.

Strategic planning

Apart from development applications SEPP 55 requires planning authorities to consider matters relevant to contaminated land when preparing an environmental planning instrument to zone or rezone land. These provisions will be removed from the SEPP, and provided in a specific section 117 direction. Current indications are that the new provisions will be much the same.

Contaminated Land Planning Guidelines

The Department of Planning and Environment has released a draft version of the Contaminated Land Planning Guidelines to be made pursuant to the Remediation of Land SEPP. The proposed guidelines cover similar topics to those in the current 1998 guidelines. The contents of the guidelines have been updated to reflect the proposed changes in the SEPP, other legislative changes since 1998 (including to the Contaminated Land Management Act 1997) and incorporate the National Environment Protection (Assessment of Site Contamination) Measure 1999 (April 2013) which represents the accepted approach for the assessment of site contamination nationally.

Certified contaminated land consultants

The new SEPP and guidelines place a greater emphasis on the role of certified contaminated land consultants. It seems likely that the new SEPP will adopt the Environment Protection Authority's list of recognised certification schemes.

Councils have tended to rely on site audits to validate remediation works. This is because councils usually do not have the in house technical expertise to properly assess the information received from developers having carried out remediation works. The guidelines encourage councils generally to rely on the documentation provided by the certified contaminated land consultant. It further clarifies circumstances in which further review, including a possible site audit, may be requested. For projects that involve more complex remediation, a further review or site audit may be required where the council lacks internal resources to assess a project of such complexity.

If councils can rely on the information provided by the certified contaminated land consultant, applicants may be spared the cost of a site audit and any other potential disclosures which site auditors may be required to make due to their expanded reporting obligations to the EPA.

Conclusion

The changes proposed will have the greatest implications for those carrying out remediation works that:

  • now fall within the expanded Category 1, as development consent will now be required which could result in additional cost and delays and ongoing compliance obligations; and
  • fall within Category 2, due to the extra costs involved to prepare and disclose additional reports and implement the operational requirements to conform with the new policy.

Submissions close on 31 March 2018.

Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.

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