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

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1 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

2 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

3 Rezoning of land Planning Function Decisions to be made 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?

4 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

5 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

6 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

7 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.

8 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

9 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

10 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

11 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)

12 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

13 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

14 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

15 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

16 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

17 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.

18 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.

19 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.

20 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

21 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

22 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

23 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

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