This program has been made possible by the New South Wales Government through the EPAs Contaminated Land Management Program under funding provided by the NSW Environmental Trust

• SEPP55 introduced in 1998 to ensure planning decisions take into account possible land contamination

• Promotes remediation to reduce harm by: • Specifying when consent for

remediation is and isn’t required

• Specifying assessment considerations relevant to rezoning, to DA’s in general and DA’s for remediation

• Requiring remediation work to meet certain standards and notification requirements

Planning Function Decisions to be made

Rezoning of land Is the land suitable or can it be made

suitable for the rezoned use?

Processing and determining a

development application

Is the land suitable, or can it and will it

be made suitable, for the proposed

development?

Modifying a development consent

Will the land be suitable for the

proposed use under the modified

consent?

Published in 1998 they support the SEPP

and address:

• The policy framework

• Identification and investigation of contamination

• The decision making process

• Management of contaminated sites and remediation

• Information management

• Principles for proactively preventing future contamination

• Changes to Part 3 of the EP&A Act and CLM Act mean that

the Planning Guidelines are now dated and do not fully

reflect SEPP 55 as currently amended nor the EP&A Act

• Changes arising from consultation (2008) and from further

proposed changes (2012) have been delayed, but a review

is currently underway by DoP as part of broader review of

SEPP’s

• The general principles in the 1998 guidelines still remain

largely valid, although some `translation’ of the terms and

concepts is required

• Clause 6 of SEPP55 refers specifically to the preparation of Environmental Planning Instruments

• Subsequent changes to Part 3 of the EP&A Act have simplified the plan making process

– Councils are now responsible for preparing and submitting planning proposals to the Minister for consideration

– Preparation of a draft LEP is no longer required

• As a result the status of Clause 6 is unclear

• Nevertheless it is considered prudent to consider possible contamination when preparing planning proposals for rezoning – particularly if the proposal could increase risk exposure

• Proponents are responsible for investigating contamination

issues on land that they propose to use and demonstrating

to the planning authority that planning approval should be

granted.

• The planning authority must evaluate the information it

already has and the information provided before making a

decision.

• The planning authority should seek further information if

the information available is insufficient.

• Planning decisions and factual information must be

recorded for future use.

The Planning Guidelines identify:

• `it is strongly recommended that council develop and adopt a formal policy for managing land contamination to provide a context for decision making’

• While `council’s policy on Contaminated Land may be contained within a number of documents, such as planning instruments that contain land use restrictions relevant to contamination and a DCP or plans……it is advisable to have a formal `stand alone’ policy document’

• `Restrictions on land use due to contamination will only apply to certain land and council’s policy needs to state the circumstances in which this applies’

• First step in evaluating whether

contamination will affect a

proposed change in land use

• Historic and current land uses of

the site and adjacent sites need to

be considered as an indicator of

potential contamination

• Table 1 of the Guidelines identify

potentially contaminating activities

• If there is no reason to suspect

contamination the proposal can

proceed in the usual way

Previous investigations and results

Existing EMP or monitoring in place

Records indicate a previous potentially contaminating activity (Table 1)

Is there a potentially contaminating activity underway

Has site previously been zoned industrial, agricultural or defence purposes?

Was, or is the land regulated through licensing or other mechanism related

to a potentially contaminating activity

Land use restrictions (e.g. orders or notices issued under CLM Act)?

Site inspection indicates likelihood of past or present activities

Any information regarding contamination of adjacent land

Ambient background levels of substances presenting a risk of harm to

human health or the environment

Further information may be

needed if initial evaluation finds:

• Contamination is suspected due

to known past uses

• Land has been remediated but

validation information is unclear

• A sensitive land use is proposed

(e.g. residential, educational,

recreational, hospital or

childcare)

The appropriate level of investigation will depend on the

circumstances and may involve one or more of the

following stages:

1. Preliminary Investigation

2. Detailed Investigation

3. Remedial Action Plan

4. Validation and Monitoring

• Should be carried out where the `initial evaluation’

indicates there may be contamination, and where

proposed land use change has potential to increase risk of

exposure to contamination

• Aims to identify any past or present potentially

contaminating activities

• Provides a preliminary assessment of any site

contamination

• If required, provides a basis for more detailed investigation

• Is only necessary when the Preliminary Investigation indicates that the land is contaminated

• Objectives:

– To define the nature, extent and degree of contamination

– Assess potential risk posed by contaminants to health and the environment

– Obtain sufficient information to develop a remedial Action Plan (RAP) if required

• Needs to be undertaken as part of a remediation proposal

• If it is already known that the land is contaminated then the Preliminary and Detailed Investigations can occur concurrently

• Sets objectives and documents

the process to remediate the

site after the nature, extent

and degree of contamination

have been fully delineated

• The need for an Environmental

Monitoring Plan should also be

considered at this stage

• Purpose is to demonstrate

whether the objectives stated

in the Remedial Action Plan

and any conditions of

development consent have

been achieved

• SEPP55 requires a notice of

completion for all remediation

work, of which validation is an

important prerequisite

• A planning authority should, as far as possible, conduct

the appropriate evaluation internally

• It may be necessary for an independent expert to assist in

the evaluation

• The expert chosen should be appropriately qualified and

experienced to deal with the type of land contamination

in question and be independent of both the proponent

and the proponent’s consultant.

• SEPP 55 does not require a site audit at any stage of the

planning process for remediation work

• An independent review 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 that 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.

• Are PCAs appointed for building work or subdivision work able to “sign off” on site audit reports?

• They are not

– Clause 161 of the EP&A Regulation lists matters for which it is appropriate for a PCA to “sign off”

– It does not apply to a site audit completed under the CLM Act or to the section of the EPA Site Auditor Guidelines dealing with Site Audit Statements

• A PCA is therefore not considered to be a `relevant authority’ under the Site Auditor guidelines

• A planning authority should not delegate its role in considering site audit statements.

• While remediation is desirable it can also cause impacts

• SEPP 55 provides consistent state wide planning and

development controls for the remediation of contaminated

land

– Category 1 – requires consent as has potential for significant

environmental impacts

– Category 2 - can proceed without consent but notice must be

provided to Council

Areas to be covered include:

• Health and safety

• Air-quality

• Water quality

• Erosion and sediment control

• Noise and waste

• Landscaping and rehabilitation

• Consultants

• Validation

• Performance bonds (as required)

• Ongoing monitoring

Key Principles • Maintain efficient property information systems to ensure

records are accurate and up-to-date.

• Section 149(2) planning certificates are an appropriate system of legal notification re the application of council policies which place restrictions on land use due to contamination risks

• Information relating to past land use and other matters relevant to contamination may also be provided, even when land use is not restricted – possibly through s. 149(5) certificates

• When land has been investigated and is considered suitable for a proposed land use change, this information must be retained in council records

• While dated the principles of the 1998 Guidelines remain valid

• Importance of a policy framework

• No planning decision should be made unless sufficient information is available for an appropriate evaluation

• A DA should only proceed if: – the land is/or can be made suitable for the intended use, or

– conditions are attached to the development consent to ensure that the subject land will be remediated to a level appropriate to its intended use prior to, or during, the development stage

• A planning authority should not delegate its role in considering site audit statements.

• Information management systems are very important