The possibility that sites are contaminated because of past uses potentially places a major spanner in essential earthquake recovery and rebuild works.
Sites used at any time for what the Ministry for the Environment considers a Hazardous Activity or Industry, are subject to additional environmental regulation - irrespective of whether they are actually contaminated. Proving that such sites are not contaminated or getting resource consents if this is not possible, are some prerequisites for a wide range of recovery activities, from excavation and site disturbance through to changing the use of land or subdividing it.
Demolition, reconstruction and many repairs require earthworks or site disturbance. Sites will often be put to uses quite different from their pre-earthquake past. New subdivisions are essential to accommodate displaced red-zoners. All face being stopped dead in their tracks, and possibly even risk triggering prosecutions under the regulations, if proper checks into past uses, compulsory site investigations or resource consent requirements are overlooked.
Hazardous Activities and Industries
The Resource Management (National Environmental Standard for Assessing and Managing Contaminants in Soil to Protect Human Health) Regulations apply to any site that is or has ever been used for a so-called "HAIL" activity. That is the acronym for the Ministry for the Environment's list of 50 or so Hazardous Activities and Industries, with the potential to contaminate sites with substances that might harm human health. It is surprisingly wide and captures a lot of seemingly innocuous sites without obvious signs of contamination. It is not restricted to the obvious like service stations, gas works or harmful chemical factories, but also affects less obvious candidates, such as those once used for automotive repair workshops, printers and orchards or market gardens.
Enforcement and consent processing under the regulations lies with the City/District Council, however, it is not alone in its interest in sites used for a HAIL activity. Environment Canterbury keeps its own register of contaminated and potentially contaminated sites, as part of its responsibilities under the Resource Management Act for ensuring that no-one allows contaminants to escape into the environment. It will add a site to its Listed Land Use Register (LLUR) if it discovers that it has been used for a HAIL activity. This means it can keep a closer eye on the site and step in - requiring extra resource consents, management plans or remedial work - if it considers there is a risk of contaminant escaping. Its requirements and records are in addition to, and often different, from those of the City/District Council.
Worryingly, it is not obvious from simply looking at a site whether it is caught by the regulations for contaminated land, because that is determined by its history. A harmless looking green field or a vacant lot may well be affected, due to a past use that can only be found by checking council files. If either the City Council's records or Environment Canterbury's records list a past HAIL use for the site, the regulations apply.
That triggers a duty to investigate the level of contamination and implement ways of preventing people from being exposed to it, even if, as is so often the case, contamination risks were caused by previous owners or occupiers. Anything from preliminary site investigations through to full resource consents can be required, depending on the level of contamination found and what is proposed with the site. The regulations specify that a recognised professional contaminated sites specialist is required. Depending on what they find, extensive rehabilitation and detailed management plans can be required. Where resource consent is necessary, this will include requirements for extensive conditions ensuring measures to prevent people being exposed to contaminants.
While existing residential land is less likely to be affected, the same cannot be said for commercial or industrial land, or rural land on the urban fringes. That is precisely where HAIL activities, ranging from mechanical workshops to chemical-intensive agriculture like market gardens, would typically have occurred. It is also the land most heavily affected by the rebuild, with its excavations, new uses and subdivisions. Those particular activities restricted by the contamination regulations are concentrated on precisely that land they are most likely to capture; a recipe for regulation breaches causing setbacks, delays and high costs the recovery can least afford.
The contaminated land regulations are likely to have increasing relevance, particularly in Christchurch where the identification of HAIL sites has been prioritised because of the need for earthquake recovery works to be undertaken.
Contaminated land issues emerge as a potentially major spanner in earthquake recovery and rebuild works - unless the investigations and resource consent applications required by the contaminated land regulations are done up front and with the right expertise.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.