TRANPLAN Sydney - Town Planning & Land Contamination

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Contamination - General

In some situations, the use of land can result in its contamination by chemicals, most often the result of historical industrial, agricultural or defence/military uses. Land contamination can arise from activities that took place on or adjacent to a site and be the result of improper chemical handling or disposal practices, or accidental spillages or leakages of chemicals during manufacturing or storage.

During assessment of a development application (DA), a planning authority (e.g. a Council) must consider the possibility that a previous land use has caused contamination of a site as well as the potential risk to health or the environment from that contamination. Decisions must then be made as to whether the land should be remediated, or its use of the land restricted, in order to reduce the risk to human health or the natural environment.

Initial Evaluation

When defining the area to be investigated, all land associated with the DA must be considered. For example, a Council’s decision to accept a developer’s land dedication for open space (local community parklands) as Section 7.12 (formerly known as Section 94) Developer Contributions might need an investigation into its suitability, and because it involves a change of use even if no development is proposed on the land at the time.

The Initial Evaluation can be based on readily available factual information and should be carried out regardless of the nature of the proposed use or the current use. Readily available information may include: current zoning and permissible uses, records from previous rezonings / uses (see below for a list of likely contaminated uses/activities), past DAs and building applications, historical property files etc.

When further Information about contamination is required

After carrying out an Initial Evaluation, if there are indications that contamination is, or may be, present but there is insufficient information to make a decision, a planning authority may need to seek further information from the developer when:

• the subject site or land in the vicinity is, or may be, associated with activities listed in the Contamination Table but it is not known whether contamination exists
• the land was, or is, regulated by the NSW Environment Protection Authority (EPA) or other regulatory authority in relation to pollution / land contamination, and there is insufficient information available about the nature and extent of contamination
• the land has been investigated or remediated but there is insufficient information available about the nature and extent of contamination, or the circumstances have changed
• council records indicate that the land is associated with complaints about pollution or illegal waste dumping, but it is not known whether contamination exists
• a “sensitive use” such as residential, educational, recreational, hospital or childcare is proposed on the land, and records on the site history are unclear about whether the land has been used in the past for a purpose listed in the Contamination Table.

A site history may be ‘unclear’ if there are significant gaps in historical information, or land uses are not described in sufficient detail to identify the presence or absence of uses during periods in which such uses listed in the Contamination Table were permissible under past zonings. 

If contamination is – or may be – present, the planning authority may require the developer to further investigate the site. The appropriate level of investigation will depend on the circumstances and may involve one or more Stages in the Site Investigation Process described below.

Stage 1: Preliminary Site Investigation

The main objectives of a Preliminary Site Investigation are to identify any past or present potentially contaminating activities, provide a preliminary assessment of any site contamination and, if required, provide a basis for a more Detailed Site Investigation. A Preliminary Site Investigation (PSI) is not necessary where the Initial Evaluation indicates that contamination is not an issue.

Stage 2: Detailed Site Investigation 

A Detailed Site Investigation is only necessary when a PSI indicates that the land is contaminated or that it is, or was, formally used for an activity listed in Contamination Table and a land use change is proposed that has the potential to increase the risk of exposure to contamination.

A Detailed Site Investigation (DSI) will also need to be conducted as part of a remediation proposal. The objectives of a DSI are to define the nature, extent and degree of contamination; to assess potential risk posed by contaminants to health and the environment; and to obtain sufficient information to develop a Remedial Action Plan (RAP), if required.

Stage 3: Remedial Action Plan 

The objective of an RAP, or plan of remediation, is to set objectives and document the process to remediate the site.

Categories of remediation work 

Developers should note that the process for carrying out remediation work differs depending on whether consent is required, whether the work is Designated Development or State Significant Development, and whether the work is on a site declared by the NSW EPA to be significantly contaminated land (Section 11 of Contaminated Land Management Act 1997). The Integrated Development provisions of the EP&A Act may also apply.

Category 1 remediation work is remediation work that requires development consent and Category 2 is remediation work that does not. Certain Category 1 remediation work on significantly contaminated land is State Significant Development for which the NSW Minister of Planning is the consent authority.

Stage 4: Validation and Monitoring 

The objective of validation and monitoring is to demonstrate whether the objectives stated in the RAP and any conditions of DA consent have been achieved. The State Environmental Planning Policy (Resilience and Hazards) 2021 (see Regulatory Framework on the right) requires a Notice of Completion for all remediation work. Validation is an important prerequisite of this notice. 

Developers should note that not every site will require all 4 stages of investigation. An investigation may proceed directly to Stage 2 for example, if it is clear early on that the land has been used for an activity listed in the Contamination Table and the proposed change of use would increase the risk from contamination (e.g. a “sensitive use” such as residential, educational, recreational, hospital or childcare).

Developers may also choose not to proceed with the development DA and terminate the site contamination investigation process at any stage. If an applicant decides to proceed with the DA proposal, the planning authority will likely require the engagement of suitably qualified contaminated land professionals who are experienced in contaminated site assessment and management. 

We provide a FREE initial consultation so that our experienced planning consultant can fully understand your contamination issues. Contact TRANPLAN's Planning Consultant now for free initial advice.

Regulatory Framework for planning and managing Contamination in NSW

For over 20 years, the former State Environmental Planning Policy No. 55 – Remediation of Land (SEPP 55) and the Contaminated Land Planning Guidelines (1998) stood sentinel to regulate and guide planning and development decisions about managing contaminated land in NSW. SEPP 55 has now been transferred to Chapter 4 of the SEPP (Resilience and Hazards) 2021. In 2018, the NSW Department of Planning and Environment and the NSW EPA released the draft Contaminated Land Planning Guidelines for public exhibition.

Section 9.1 of the Environmental Planning and Assessment Act 1979 includes requirements for considering contamination when rezoning land pursuant to Ministerial Direction 4.4 – Remediation of Contaminated Land. 

The NSW EPA also has powers under the Contaminated Land Management Act 1997 to deal with contamination that is serious enough to justify regulation under this legislation.

If the above brief overview about contamination is a bit too much information to process, feel free to contact our specialist Town Planner for guidance on your DA. 

Let our Town Planning consultant do all the hard work for you and trawl through library catalogues, Council and Government records from previous rezonings / uses, past DAs and building applications, historical property files, review NSW EPA notices, research historical aerial imageries, examine all the planning laws and cross-reference with contamination legislation clauses to manage your project and negotiate the Council approval process on your behalf.