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Phillippa BiswellEnvironmental Project

Officer – Earth Scientist

Sutherland Shire Council

MIDROC issues� Livestock

� Timber mills

� Blueberry farms

� Banana Plantations

� Service Stations

� Rifle Range

� SSC have Landfills, Service Stations, Market Gardens

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Outline� Planning

� Contaminated Lands Policy / DCP

� Contaminated Lands Information Register

� s.149 Planning Certificates

� Assessment

� Dealing with Contaminated Lands as part of a Development

Application

� Clean up Notices

� Dealing with Contaminated Lands under the Protection of the

Environment Operations Act 1997

� Case Studies

Ensuring the documents and

policies are available to enable the

remediation and management of

Contaminated Lands

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Planning - Legislative Framework

ContaminatedLand Management

Act

CLM RegGuidelines –Guidelines forConsultants

Protection of theEnvironmentOperations Act

Regulation

UndergroundPetroleum

Storage TanksRegulation

EP&A Act

SEPP55Remediation of

Land

Managing LandContamination -SEPP55 Planning

Guidelines LEP (DCP)

EP&A RegSEPP (Exempt &

Complying)

Guidelines

EPA Guidelines useful tools – available at

www.epa.nsw.gov.au

� Guidelines for Assessing Banana Plantation Sites,

� Guidelines for Consultants Reporting on Contaminated

Sites,

� Guidelines for Assessing Former Orchards and Market

Gardens,

� Guidelines for the assessment and Management of

Groundwater,

� Guidelines on the Duty to Report Contamination under

the CLM Act 1997

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Contaminated Land PolicySSLEP 2015 – A separate contaminated clause is not included in the LEP

standard instrument. Contaminated Lands and suitability of lands covered under

clause 79(c) of the EP&A Act and SEPP 55.

SEPP 55 – Clause 6. The allocated zone must be suitable for the contamination

status of the land when considering making an environmental planning

instrument. Clause 7 – Suitable land use.

Development Control Plan – Provides the controls for certain types of

development.

Protection of the Environment Operations Act – Legislation that can be used

in emergency situations.

SEPP (Exempt and Complying Development Codes) 2008 – Aims to provide

streamlined assessment processes for development that complies with specified

development standards.

SEPP 55 – Remediation of Land

� Clause 6 – Contamination and remediation to be considered in zoning or rezoning proposals.

� Must identify classes of land

� Will require evidence of land status prior to consenting to zone

changes

� Clause 7 – Contamination and remediation to be considered in determining development applications.

� Council must consider whether the land is contaminated.

� the land is suitable in its contaminated state or after remediation.

� Is satisfied that remediation will be carried out prior to the land

being used for the approved purpose.

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� Category 1 Remediation works – Requires

development consent.

� Category 2 Remediation works – Requires:

� notification to Council 1 month prior to commencement of works

� Submission of a Validation report 30 days after completion of

works to Council

� Section 9(f) allows Councils to nominate remediation

works as Category 1 in a policy made under the

contaminated land planning guidelines

SSDCP 2006 & Draft SSDCP 2015

� Council took the option of including additional works as Category 1 remediation in accordance with Clause 9(f) of SEPP 55.

� Remediation work within 40m of an open drainage channel, creek

or water body.

� Remediation work involving treatment of groundwater,

� Remediation work involving on-site treatment of contaminated soil

eg: soil stabilisation, land-farming, soil washing or thermal

desorption.

� Remediation work involving on-site capping or containment of

contaminated soils.

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� Remediation work on a site where off-site migration of contaminants

has occurred.

� Remediation work involving the removal of Petroleum and other

Underground Storage Tanks.

� Reasons for nomination of Category 1 Remediation Works

� Shallow groundwater, sensitive environments, many waterways, not

compliant with SEPP 55.

� SEPP 55 is difficult to enforce (Division 3 & 4 EP&A Act 1979)

SEPP (Exempt and Complying Development

Codes) 2008

� Over rides LEP, and SEPP 55.

(1) If this Policy and any other State environmental planning

policy, whether made before or after the commencement of this Policy,

specify the same development, as either exempt development or

complying development, the other Policy does not apply to that

development, except as provided by subclauses (2)–(4).

� (5) Specific land exemptions for Commercial and Industrial

(New Buildings and Additions) Code

5(d) land that is significantly contaminated land within the

meaning of the Contaminated Land Management Act 1997,

� Does not recognise that residential land can be

contaminated.

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� Section 1.20 of the Act refers to covenant's imposed by

Council as over-riding the SEPP.

� SEPP (Exempt and Complying Development Codes) has

not been considerate of SEPP 55 when developed.

� In accepting a Development Application or Environmental

Management Plan on contaminated land, consider:

� the future likelihood of installation of swimming pools,

� alteration of slab size,

� excavations (to 3m) etc,

� whether the risk assessment will still be adequate or whether it will need to be reassessed.

Managing Contaminated Land Guidelines

� Section 4.2 suggests that it would be useful for Councils

to have a DCP that maps previous land uses associated

with the activities listed in table 1 of the Guidelines. Used

as a guide to areas where further information is required.

� Section 5.1 recommends a flexible information system is

needed to accommodate the dynamic nature of land

contamination management.

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SSC Contaminated Land Information Register (CLIR)

s.149 Property Certificate Notations

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Standard s.149 Notations� Previously have only placed notations on properties identified as being

contaminated. Each notation was individually written to reflect the current situation of that site. The notation was updated if new information warranted it.

� Over 2000 identified properties meant standard notations were necessary.

� Currently use 9 standard s.149 Notations reflecting the current status of the site which is updated as required when new information is provided:

Potentially Contaminated: Councils records indicate that one or more of the activities listed in Table 1 of the Managing Land Contamination Guidelines 1998 may have been undertaken and/or approved on the land. Council’s records do not currently contain sufficient information to determine that there is actual contamination of the land. Council may require further investigation of potential contamination, and remediation action where contamination is found, particularly if the land is to be redeveloped or the land use is to be changed to a more sensitive use. Please contact Council for further information. (Also used in a modified form for adjacent lands).

Contaminated: Council has received a Detailed Investigation that

indicates the land has been affected from contaminants as a result of

the land being used for a contaminating activity(s). Remediation

may be required prior to development or as part of the continued use of

the land. Please contact Council for further information. (Also used in a

modified form for adjacent lands).

Contaminated Remediation Action Plan received: Council has

received a Remediation Action Plan outlining a course of action to

remediate the land to a level suitable for its intended use. The land will

be required to be remediated prior to development or as part of the

continued use of the land. Please contact Council for more information.

(Also used in a modified form for adjacent lands).

Validation Report Received: Council has received a validation report

indicating that the land has been remediated to a level suitable for its

current use. Also warns that there may be restrictions on the land in

part or in full and that land use for any other purpose than its current

may require additional remediation.

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Contaminated Land OK for Current Use: Council has received Documentation that indicates the land is suitable for its current use. Further investigation and remediation may be required prior to a change of use or further development of the land. Please contact Council for further information.

Suitable for residential use with full access to soil: Council has received a validation report indicating the land has been remediated to the highest level (NEHFA) and is suitable for residential occupation. Please contact Council for further information.

Note: Councils are protected under section 145B of the EP&A Act 1979 for information placed on s.149(5) certificates relating to contaminated lands provided it is recorded in good faith.

GIS Mapping Tool

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Contaminated Lands Information Register

Agricultur

57%

Chemical

2%

EngineWork

2%

Fuel

2%

Landfill

7%

MetalWorks

1%

Mining/Extr

5%Mixed

14%

Railway

4%

Other

6%

Other

Paint

Plastic

Power

Printing

Resin

Wood

Aquacultur

Electrical

Horticult

Marina

Scrap yardWaterTreat

Asbestos

Battery

Tanning

Gas

DryClean

Funeralserv

Defence

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Case Study – Success of CLIR

•Owner unaware of

previous installation of

USTs.

•Council provided

information relating to

known USTs

•Plans to redevelop the

entire site.

•Did not want liability

going forward – choose

to remove all USTs and

pipework from site.

Who is responsible for Investigations /

Remediation

Under Section 6 of the Contaminated Lands Management Act 1997;

� The person who caused the contamination is responsible for the contamination.

In reality its not that straight forward....

� The person who usually remediates is the owner / developer of the land.

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Case Study – Incomplete remediation

DA Approved� Historically a Petrol Station.

� DA approved to remediate to a level suitable for residential development.

� Contamination remained on site at a depth near services.

� Risk assessment concluded that risk of dermal contact at 1m depth and groundwater should not be accessed until levels return to normal.

� No indication of how long risk remains and no ongoing plans to continue monitoring.

� Site has been sold therefore, DA and responsibility transfers to new owner.

Development Applications

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Development Applications

� Council requires that a suitable Remediation Action Plan,

Management Plan or Validation Report is submitted with a

Development Application.

� Deferred Commencement is not the preferred approach.

� Must demonstrate, backed up with appropriate sampling

and assessment that the site is suitable for its intended

use and without risk to human health.

� Where there is a risk to human health, it needs to be demonstrated

that:

� the risk can be managed so as to reduce the risk to human health to a

safe level,

� An indication of a time frame that the risk will be present also needs to be

provided along with,

� a management plan indicating the level of on-going monitoring required.

� May require a site audit statement to indicate that the site is suitable

and/or the level of risk to human health is acceptable.

� Council may also require a CEMP to manage odours and risks to

workers and adjoining properties / residents during development

works.

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Consultants Reports

“Rule Number 1”Do not just read the Executive Summary

“Rule Number 2”Read the entire report, including the laboratory

results tables

� Ensure that Investigation Report, Remediation Action Plan and Validation Report are in accordance with the EPA Guidelines for Consultants Reporting on Contaminated Sites.

� Also ensure they are in accordance with NEPM 1999 (Amended 2013).

� A Conceptual Site Model should be included in the investigation report.

� Ensure the appropriate analytes are sampled and that they reflect the previous / current uses of the land.

� Ensure that the Validation Report indicates whether the remediation has been successful and that the land is determined to be suitable for the intended use and that the validation report is submitted to the SATISFACTION of Council.

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NEPM 1999 (Amended 2013)

Council must consider the criteria set out in the NEPM when assessing

Contaminated Lands.

• Hydrocarbon standardisation

• Revised HILs, EILS and GILs

• Asbestos clean up criteria

• Relevant authority (Council) to make preliminary assessment of

potential health risks

• Screening Levels (HSLs and ESLs)

• Health Risk Assessments

• Vapour intrusion

• Risk based clean-up based on current use

� Health Screening Levels (HSLs)

� Four land use settings (HSL A & B low-high density residential, HSL C – recreational / open space, HSL D – Commercial / Industrial)

� Provide Tier 1 health assessment of exposure to hydrocarbon vapours in various land settings

� Ecological Screening Levels (ESLs)

� Three land use settings (areas of ecological significance, Urban residential & public open space, commercial / industrial)

� Applies to top 3m of soil – not always suitable

� Hydrocarbon Vapour intrusion

� Amount of data required

� Consideration of depth to groundwater

� Currently released guidelines

� Site specific depth application

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� Health Risk Assessments

� Tiered approach to health risk assessments

� Toxicity assessment

� Exposure assessment

� Risk based clean-up for current use

� Is the risk based clean-up still suitable if a change of use occurs?

� How is local government going to keep track of what has

previously occurred on a site and what level of suitability it has

obtained.

� NEMP can be found at www.scew.gov.au

Vapour Intrusion – A risk or not?

• NEPM 2013 – Risk of vapour intrusion must be

considered.

• Council responsible for ensuring vapour risk is properly

assessed.

• Council must consider whether land is suitable for use /

development or whether it can be made suitable

prior to DA approval.

• Council seen to be responsible if wrong assessment

made.

• Council experiencing an increase in risk assessment and

EMP based validation approaches to remediation.

• Not sure? Ask NSW Health Department for help.

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Conceptual Site Model

Laboratory Reports

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Conditions of Consent

� Conditions of consent regulate development of land ensuring it is carried out in accordance with relevant legislation.

� Each site is different so standard Conditions of Consent are not always appropriate.

� Conditions of consent should as a minimum cover the following:� Remedial works – in accordance with an approved Remedial

Action Plan with / or without additional items specified by Council. Ensure RAP will achieve an outcome suitable for intended use.

� Imported Waste Derived fill material – Ensuring fill materials brought onto site comply with relevant POEO (Waste) Exemptions.

� Disposal of Site Soils – Ensures that (contaminated) soils excavated from site are disposed of in an appropriate manner. Require that documentation to that effect are included in validation reporting.

� Disposal of water from excavations – Stipulate whether water from excavations is to be disposed to sewer (licence from Sydney Water or equivalent required), discharged to stormwater (specify criteria to be met and sampling regime), or trucked from site and disposed of at a suitably licensed facility.

� Conditions that cover generation and treatment of odours, environmental site management, and protection of neighbouring residents.

� Validation reporting – specify what should be included in the validation report, eg: site plan indicating any abandoned USTs.

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Cannot prevent an occupation certificate or sub-division certificate being issued if there is no Condition of Consent preventing it.

Case Study – Not captured under DA Process

� Contamination as a result of

groundwater migration from a

service station up gradient.

� No conditions of consent on DA

approval - couldn’t stop

construction or occupation

� Potential vapour and odour issues.

� Initial sampling / remediation

undertaken under POEO Act.

� Follow-up investigations /

remediation through CLM Act.

� Still no vapour sampling in the

units to date.

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Environmental Management Plans

• Council will consider approving EMPs as a remediation

option provided they can be reasonably implemented.

• Is the EMP development restrictive?

• Does an EMP present long term issues?

• Is additional sampling / assessment required for future

development / use of the site?

• Would Exempt or Complying Development alter the risk

assessment outcome?

• More favourable to approving EMPs on Commercial /

Industrial zoned land than residential.

Problem! - Where to record the existence of an EMP?

• Property Title – Records and responsibility lies with NSW Land and

Property Information.

• Relies on a Council Assessment Officer to check the Property Title.

• S.149(2) and (5) Planning Certificates. Printed out and attached to each

DA for assist in assessment.

• Putting information associated with an EMP on a s.149(2) or s.149(5) –

no clear place.

• s.149(2) and s.149(5) purchased separately – most only purchase

s.149(2).

• s.149(2) part 7 – Risk. Can notate, for example ‘Yes – development is

restricted on the land by Council’s Contaminated Lands Policy.

• S.149(5) – Still able to place factual information here – probably the best

location to notate the presence of an EMP.

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Case Study –

EMP

• Fuel from a Service Station migrated off-site underneath residential properties.

• Groundwater approximately 1.5m bgl.

• Petroleum Company wanted to attach EMPs so that the properties could be sold or developed.

• Council hasn’t agreed to EMPs due to Exempt and Complying SEPP issues.

• Ongoing issue – solution still to be discovered.

Case Study: EMP • Large industrial site previously contaminated and

remediated prior to sub-division.

• Dangerous gases - on-going risk over a portion of the

site.

• Site Auditor signed off on remediation subject to EMP

being implemented.

• EMP attached to Property Title only.

• Purchasers unaware of EMP or EMP requirements even

though Property Title given in each sale package.

• Purchasers pay more attention to s.149(2) certificate.

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Use of Site Auditors

� When should Site Auditors be appointed?

� On all contaminated land requiring remediation?

� On land that is undergoing remediation but intended use

remains the same?

� Where the land use is changing to a more sensitive use?

� Where there is an identified or suspected risk of harm to

human health or the environment?

Under CLM Act a Site Auditor may be

appointed where…

� Council believes that the information provided by the proponent is

incorrect or incomplete,

� Council wishes to verify the information provided by the proponent

adheres to appropriate standards, procedure and guidelines,

� Council does not have the internal resources to conduct its own

technical review,

� The land use is to be changed to a residential or sensitive land use

(NEHF A or D).

A Site Auditor can be appointed to undertake a site audit of any or all

stages of the site investigation, remediation, and validation processes.

It is recommended that a Site Auditor be appointed early on in the

process to prevent significant delays.

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Alternatives to DA process in an

emergency

Protection of the Environment Operations Act

� Allows Council to issue clean up notices in a pollution incident event to direct an occupier of a premises to take such action as specified in the notice.

� Used to obtain information (s.192 or s.193), direct owner to undertake detailed investigation and action regarding suspected pollution of land (s.91).

� Used when land is not the subject of a development application.

� Generally used prior to EPA regulation under CLM Act or where a site is not ‘significantly contaminated land’.

� The POEO Act may be able to be used for non-compliance of SEPP 55 when the regulatory authority reasonably suspects that a pollution incident has occurred or is occurring.

� Can be used to by-pass the Development Application Process in an emergency situation.

� Cannot use it to prevent occupation of a premises.

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Case Study:

Use of POEO Act to bypass DA process

• USTs leaked into sewer

pipes behind service

station.

• Sewer vapours +

petroleum vapours

resulted in explosion.

• Clean up notice issued

to install interception

trench to prevent further

off-site migration of fuel

– normally would need a

DA.

Case Study – Tank replacement program with off-site migration of petroleum hydrocarbons

• Council received complaints from neighbouring residential units.

• Council investigated under POEO powers.

• EPA also became involved. Sampling on-site indicated contamination in soil and groundwater.

• DA submitted for on-site works. Off-site impacts dealt with jointly by EPA, Dept of Housing and Council, and Petrol Station owner.

• Planning process requires permission to be sought from land owners if intend to undertake development works on land not owned by self.

• Some units have been vacated and ongoing vapour monitoring is being undertaken to determine if Units and adjoining properties are safe for human

occupation.

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Case Study – Building on a landfill

1961 –

Mangroves and

Saltmarsh

Filled during

1960’s with

waste

1978 – The start of a new era

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A new town centre development –

residential / commercialIssues:

Dangerous gases from

filled material and from

filling of mangrove / salt

marsh – gas capping

required.

Cannot excavate below

existing ground level

No basement car parking

permitted and additional

heights required to

accommodate parking

levels.

Conclusion

� NSW Government Planning Requirements don’tencourage the inclusion of Contamination Clauses in

Local Planning Instruments as it relies heavily on SEPP

55,

BUT;

� SEPP 55 is difficult to enforce,

AND:

� SEPP (Exempt and Complying Development Codes)

2008 does not recognise residential land can be

contaminated and it is in conflict with SEPP 55

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THEREFORE;

� It is important to correctly zone land, and

� Create Contaminated Land Policies, and

� Keep a Contaminated Lands Information Register –

Especially with the new NEPM Changes and emphasis

on RISK BASED and SUSTAINABLE CLEAN-UP

� Ensure conditions of consent are appropriate for each

site

� Ensure all reports are submitted to Council

� And that potential future exempt or complying

developments are considered when assessing land for

zoning and development.

Thank you

Any questions – you are welcome to contact me:

� Phillippa Biswell

� Phone: 02 9710 0210

� Email: pbiswell@ssc.nsw.gov.au