Contaminated land and planning

To help identify where potentially contaminated land provisions apply, planning and responsible authorities may consider developing a checklist for planning proposals similar to the attached.

This model checklist is based on the process for identifying potentially contaminated land set out in Planning practice note 30: Potentially contaminated land.

Where this checklist is completed by a proponent or applicant, it remains important for the planning or responsible authority to conduct their own assessment to determine if the land is potentially contaminated.

For environmental consultant to complete

When requiring/receiving a preliminary site investigation as part of a request for information, application or proposed amendment, planning and responsible authorities may consider implementing a cover sheet similar to the following.

The coversheet is designed to be completed by the environmental consultant who has prepared the report and submitted alongside it, to facilitate the assessment and interpretation of the preliminary site investigation by the planner.

Model preliminary site investigation cover sheet (DOCX, 45.4 KB)

When requesting a preliminary risk screen assessment or preliminary site investigation it is important to carefully word the request to ensure what is submitted will meet the requirements of the planning or responsible authority.

Request for further information – preliminary risk screen assessment

Example text for a request for further information:

An environmental auditor appointed under the Environment Protection Act 2017 must conduct a preliminary risk screen assessment in accordance with Part 8.3 of that Act, that is scoped according to the proposed use/development, and;

Issue a preliminary risk screen assessment statement for the land in accordance with s. 205 of the Environment Protection Act 2017

Request for further information – preliminary site investigation

Example text for a request for further information:

A Preliminary Site Investigation, that must:

1. Be prepared by a suitably qualified environmental professional to the satisfaction of the Planning/Responsible authority.
2. Be undertaken in accordance with Schedule B2 of the National Environment Protection (Assessment of Site Contamination Measure) 1999.
3. Not contain a disclaimer limiting the use of the report by the planning/responsible authority.
4. Make an unequivocal statement that either:
   1. The site is not likely to be contaminated to a level which would pose a significant risk to the environment or human health under the proposed use/development scenario. No further assessment is required, or,
   2. The site is contaminated, or there is likelihood of contamination, that would pose a risk to the proposed use/development scenario. There is sufficient information to derive a risk-based remediation or management strategy, or,
   3. The site is contaminated, or there is likelihood of contamination, that would pose a risk to the proposed use/development scenario. The site requires further investigation.

Planning permit conditions – best practice

Planning practice note 30: Potentially contaminated land provides a basic model permit condition. Those Councils who wish to develop this condition further may consider the following ideas:

• A requirement that the scope of any proposed assessment must be provided to the responsible authority and be to the satisfaction of the responsible authority.
• A general condition that buildings and works/use of land must comply with the provisions of the Environmental Audit Statement.
• More specific wording on the timing that evidence of compliance with audit recommendations must be provided – e.g. prior to the issue of an Occupancy Permit under the Building Act 1993.
• A requirement that proposed remediation works be documented and submitted to the responsible authority, and that the responsible authority approve such works.
• A note that:
  • the Environmental Audit Statement, including the Environmental Audit Report, must be submitted to the responsible authority within 5 business days of issue, as set out in s 210 of the Environment Protection Act 2017.
  • The person in management or control of the site must also provide a copy of any statement to any person who proposes to become the person in management or control of the site, such as a potential purchaser.

When can a preliminary site investigation be accepted to inform a planning decision?

Planning practice note 30: Potentially contaminated land provides guidance on when a PSI is the appropriate assessment process for a given planning application – refer to Table 3, and the discussion below.

Sensitive uses, children’s playgrounds, and secondary schools:

Where the land meets the definition of “potentially contaminated land” and a “sensitive use”, secondary school, or children’s playground is proposed, an assessment under the audit system is always required – a PSI will not be sufficient (even the PSI concludes no further assessment is required.) This is because a PSI provides a reduced level of assurance when compared with an assessment under the audit system.

In these cases, the planning or responsible authority does not need to assess any PSI submitted but instead needs to advise the applicant/proponent to submit the appropriate assessment under the Environmental Audit system. A PSI will form part of these assessments.

Other uses

For other uses, a PSI is the appropriate assessment where land meets the definition of “potentially contaminated land” and the past use/activity on the site is in the “high potential” contamination category as set out in Planning practice note 30: Potentially contaminated land Table 2 and Table 3. In these cases, the planning or responsible authority should review any PSI submitted to inform the planning decision and determine appropriate requirements to manage any contamination. The below guide is intended to assist the planner in this process.

What standards apply to a preliminary site investigation?

A a preliminary site investigation should be undertaken in accordance with Schedule B2 of the National Environment Protection (Assessment of Site Contamination Measure) 1999.

What does a preliminary site investigation contain

A preliminary site investigation is a primarily desktop investigation. The purpose is to recommend whether potential contamination at the land warrants further field investigation, such as through an audit. The investigation will inform what, if any, requirements a planner needs to impose to ensure any contamination is appropriately managed.

A key part of the preliminary site investigation is to document historical activities on the site and surrounds. If a thorough investigation shows a history of non-contaminating activities and there is no other evidence or suspicion of contamination, the planner should review whether, in fact, the land meets the definition of “potentially contaminated”.

Where the site history confirms the land is potentially contaminated, the preliminary site investigation will include a conceptual site model. The model will identify likely sources of contamination, and any pathways for contamination to reach receptors, such as site occupants, under the land use/development scenario. The conceptual site model can be a useful summary for a planner to understand the nature of potential risks at the site, and help inform discussions with the applicant/proponent and their consultants.

Sampling and testing of the land are not always necessary for a preliminary site investigation, however, some may include a limited preliminary sampling and analysis program. Where this is the case, the investigation should clearly set out any results exceeding the applicable criteria. This is an important indicator of a potential risk to the proposed use or development.

In land use planning, the conclusions provided by a preliminary site investigation should be clear enough to support appropriate decision making on what, if any, further requirements should be incorporated into the planning decision making process.

What conclusions should a preliminary site investigation provide?

A preliminary site investigation should make a clear statement that either:

1. The site is not likely to be contaminated to a level which would pose a significant risk to the environment or human health under the proposed use/development scenario. No further assessment is required, or,
2. The site is contaminated, or there is likelihood of contamination, that would pose a risk to the proposed use/development scenario. There is sufficient information to derive a risk-based remediation or management strategy, or,
3. The site is contaminated, or there is likelihood of contamination, that would pose a risk to the proposed use/development scenario. The site requires further investigation.

It should not include a limitations section that precludes reliance on the report by the planning or responsible authority.

A preliminary site investigation should contain sufficient information to determine whether there is sufficient information to remediate or manage contamination, or where further investigation is required. While the investigation should give the consultant’s opinion on this point, ultimately the decision lies with the planning or responsible authority, who are responsible for reviewing this opinion and taking an active role in decision making.

Making a decision based on a preliminary site investigation

A preliminary site investigation will contain a consultant’s recommendation for appropriate steps to respond to any identified contamination. However, investigations are undertaken by the applicant or proponent’s consultant without the involvement of an independent environmental auditor. The planning or responsible authority should also review the preliminary site investigation.

In some cases, the planning or responsible authority may reach a different decision to that recommended in the preliminary site investigation. If the planning or responsible authority consider that further investigation is required, they may choose to require an environmental audit.

Some examples where it may be appropriate to trigger an environmental audit are:

• the site is contaminated, or there is likelihood of contamination, that would pose a significant risk to the proposed use/development scenario
• the assessment recommends complex further assessment such as Detailed Site Investigation or Human Health Risk Assessment and the oversight of an auditor is considered warranted
• the condition of the site is not suitable for the current use.
• an additional level of certainty and independent review is required.
• where the preliminary site investigation, a peer review, or the EPA gives the opinion that an audit is required.

Escalation to audit may not be required if:

• the site is not likely to be contaminated to a level which would pose a significant risk to the environment or human health under the proposed use/development scenario.
• the site is contaminated, or there is likelihood of contamination, that would pose a risk to the proposed use/development scenario, but there is sufficient information to derive a risk-based remediation or management strategy.

When to consider independent review

Where a preliminary site investigation  is submitted to support a planning decision, the planning or responsible authority may consider seeking an independent assessment of the information, for example, when:

• the level of contamination is very high, and the preliminary site investigation includes highly technical detail
• there may be some doubt as to whether measures proposed to manage contamination, such as an environmental management plan, are appropriate to manage the contamination identified
• council would like an additional level of certainty.

Applying the EAO for planning scheme amendments affecting large areas of a municipality – precinct based application

The following methodology is designed to provide the most efficient approach for identifying potentially contaminated land for planning scheme amendments affecting large urban areas (precincts), with many sites in multiple ownership.

An example would be a formerly commercial or industrial area of a city which is being transitioned to enable residential development.

Methodology – Precinct based approach to applying an EAO

Step 1: Identify potentially contaminated land

Step 2: Apply the EAO

Apply the EAO to the following sites within the precinct, as mapped in Step 1 above.

1. sites with current uses that have a high or medium potential for contamination
2. sites where previous activities with a high or medium potential for contamination are known to have taken place
3. sites identified as potentially contaminated due to off-site contamination from adjoining properties.

The advice of a suitably qualified environmental consultant is recommended for determining the potential extent of contamination from off-site sources.

Scenario 1: Following assessment under the environmental audit system

The planning authority should remove the EAO if:

• the site is given a preliminary risk screen assessment statement which is scoped to assess all relevant land use/development types, and states that an audit is not required for all such uses/developments.
• the site is given an Environmental Audit Statement which is scoped to assess all relevant land use/development types, and states that the site is suitable for all such uses/developments, without any recommendations.

In some circumstances where an environmental audit statement is issued with recommendations, it may also be possible to remove the EAO where there are minimum restrictions or recommendations on the use of the site, or the recommendations have been complied with. It is always important however to ensure the scope of the audit encompassed all relevant land use/development types.

Scenario 2: Where it determines that the land is not potentially contaminated

In some cases, the planning authority may have information to suggest that land within an EAO is not potentially contaminated. In this circumstance, the below method can be applied to confirm whether the EAO is warranted.

Method for reassessing land with an Environmental Audit Overlay

For which planning proposals is this guidance relevant?

This guidance may apply for any strategic or statutory planning proposal involving potentially contaminated land (PCL) proposed for sensitive use, secondary schools or children’s playgrounds. In these cases, a requirement for assessment under the environmental audit system will apply, i.e. a Preliminary Risk Screen Assessment (PRSA) or environmental audit (audit)

What is the intent of this guidance?

This guidance aims to support planners in defining an appropriate spatial area for audit requirements during planning processes. It seeks to ensure that audits are required where there is a risk from contamination to the proposal, but also to provide a clear process to reduce the boundaries of audit requirements where safe to do so.

How is the spatial extent of environmental audit system requirements generally defined?

Generally, a requirement for assessment under the environmental audit system should be applied to the current cadastral area boundary (typically identified as a title or lot boundary).

The reason PCL requirements are typically mapped to cadastral boundaries is because PCL identification is based on the land use history, typically tied to a lot, rather than to a geographical area independent of previous site activities/ownership (as in the case of flooding). There are also many variables involved in estimating the potential extent of contamination within a site, as contamination can migrate underground. For these reasons, an assessment under the environmental audit system (which consists of an investigation by a suitably qualified environmental professional, independently reviewed by an environmental auditor) is needed to inform definition of any new boundary.

In limited circumstances, such as for very large former agricultural lots, the planning or responsible authority, with input from the proponent/applicant, may determine that the spatial extent of an audit (versus a PRSA) requirement can be varied to within the cadastral boundary. Typically, such variation will follow completion of a PRSA demonstrating that a portion of the site requires an audit, while the remainder of the site does not.

When is it appropriate to pursue variation from the current cadastral boundary?

Reducing the spatial extent of audit requirements to within a cadastral boundary is generally most appropriate for large sites, where only a limited portion is expected to be contaminated. For example, for a large former agricultural site, the majority of the site may have been used for activities unlikely to cause contamination (such as grazing), while a small portion may have been used for ancillary contaminating activities such as farm fuel or chemical storage.

Since any reduction in audit boundaries will also need to align with a future lot boundary, future subdivision must be expected for the subject land.

When is it not appropriate to pursue variation from the current cadastral boundary?

Environmental audit system requirements should be mapped to the entire cadastral boundary in circumstances where there is complex contamination, for example where pollution may be mobile in groundwater or vapour and may pose a risk to the land. In these circumstances it may not be possible to estimate the full extent of potential contamination accurately enough to reduce boundaries with confidence.

Audit requirements should not be varied when there is no intention to subdivide the site – as stated above, the intent is that audit boundaries align with future lot boundaries.

Further, a reduction in the boundary of requirements should not be permitted where the remaining area subject to requirements would become too small to be economically viable to develop. In this case, the risk of “orphaning” – i.e. the contaminated portion never being cleaned up an redeveloped – is high.

A reduction from current cadastral boundary should also not be allowed by the planning or responsible authority in the absence of sufficient information to justify such as change (see recommended process below).

Things to be aware of before deciding to vary the boundary of an audit requirement

Often, proponents/applicants wish to vary an audit boundary based on a perception that the time and cost involved in an audit process will be significantly reduced if the area is smaller. However, time and costs involved in audits are generally not strongly related to the size of the site. Rather, they depend on the complexity of the contamination present, and the amount of remediation needed to make the site suitable for the proposal. For example, an audit of a 100 ha agricultural property may be significantly less expensive than an audit of a 1000 m² former service station (depending on what activities have occurred on site).

This is particularly true with the introduction of the scoped audit system under the Environment Protection Act 2017. Undertaking an audit for an entire property, even if very large, may therefore have a similar cost to auditing just the contaminated portion, as most of the audit costs will be associated with that contaminated portion.

As undertaking a process to vary the boundary of an audit requirement does also require time and financial expense, the costs and benefits of seeking to reduce the audit boundary should be considered prior to proceeding, where audit costs are the primary driver.

When considering the costs of pursuing a variation, it can be useful to know that the cost of the PRSA process recommended is likewise not proportionate to the site area.

Where appropriate, what is the recommended process for defining the new boundary?

Where a site has been identified as PCL and is proposed for a sensitive use, under relevant policy, the planning or responsible authority must require it to be assessed under the environmental audit system, via either a PRSA or full audit.

If the proponent or applicant wishes to vary the boundary of any audit requirement, there may be an opportunity to achieve this via conducting a PRSA first.

The proponent or applicant should provide the planning or responsible authority with any prior environmental audit or PRSA statements applying to the land which may provide adequate evidence to redefine the spatial extent of requirements. Otherwise, the following process provides a recommended approach for defining a new boundary through using the PRSA instrument.

A PRSA is a preliminary (primarily desktop) assessment which confirms whether an audit is needed. Through undertaking a PRSA prior to decision, there is an opportunity to spatially scope the boundaries of any audit requirement to within the current cadastral boundaries (subject to the findings of the PRSA). This may lead to more efficient cost and time outcomes, when applied at appropriate sites.

Warning: there are no guarantees that the PRSA statement will recommend a reduction in the audit area for every site. For some sites, a PRSA may find that due to the nature of the contamination, it is not possible to determine, based on this primarily desktop assessment, that parts of the site are free from contamination. In this case, the boundary of the environmental audit requirement will need to remain at the cadastral boundary. Where the PRSA does not recommend a changed boundary, it will still add value, as the work will be used in any subsequent audit process, thereby reducing time/costs at the audit stage.

Steps in this process are as follows:

1. The planning/responsible authority must determine that the site is PCL. This must occur prior to a PRSA being undertaken, as this determination provides the justification for requiring a PRSA from the applicant/proponent.
2. By exception, the proponent/applicant may request that the planning or responsible authority consider a variation to the boundary of any audit requirement. They may provide any existing audit or PRSA reports where they have been undertaken.
3. On request from the proponent/applicant to vary boundaries, the planning/responsible authority should consider the guidance above on when variation is appropriate (see headings above).
4. If a variation appears appropriate, the planning/responsible authority could discuss with the applicant/proponent the option of undertaking a PRSA prior to the planning decision (if not already undertaken). For strategic planning proposals, the planning authority will also be seeking written views from EPA under Ministerial Direction 19 (this may occur here or later in the process). If the proponent/applicant wishes to continue, proceed to step 5.
5. The applicant/proponent will undertake the PRSA and provide it to the planning or responsible authority for review. The PRSA will contain one or multiple PRSA statements, which will provide an opinion on whether an audit is required for the site, or designated sub-sections of the site.
6. The planning/responsible authority must review the PRSA statements/s. In doing so, it is important to confirm:
   1. That the scope of the PRSA included all relevant use/developments for the land.
   2. Whether separate PRSA statements have been issued for parts of the site, and
   3. Whether the PRSA statement(s) recommended audits.
7. The planning or responsible authority must require an environmental audit for the portion of the site recommended through the PRSA process. As appropriate to the proposal, the audit may be required at the time of the decision, or deferred via an Environmental audit overlay (strategic proposals) or a condition on planning permit (statutory proposals).

In cases where the above process has not been undertaken, the planning or responsible authority should undertake a precautionary approach and apply the environmental audit system requirement to the cadastral area boundary. This is because until an audit or PRSA is undertaken, there is still uncertainty on the extent of land that is potentially contaminated.

Case study

A developer has purchased a former farm that raised sheep. The site is proposed to be rezoned, then sub-divided for a new low density residential housing estate. The local council has requested that a preliminary risk screen assessment (PRSA), be undertaken to inform the planning scheme amendment. The area of the farm (the site) covers approximately 300 hectares. The majority of the site was used for grazing and had no history of use of pesticides. In the southeast corner of the site is a farmhouse and a series of large sheds used for equipment storage and maintenance covering an area of approximately 8,000 m². Adjacent to the house is believed to be an old underground storage tank (UST) used for storing for heating oil. Adjacent to the sheds is also a sheep dip and a chemical storage area. The environmental auditor assessed the site history of the site and found no other evidence of potentially contaminating activities at the site or neighbouring properties.

Given the potential for contamination around the old UST, sheep dip and chemical storage area, the auditor has determined that an environmental audit should be undertaken for part of the site. The area requiring an environmental audit is tied to the proposed future development areas and proposed sub area (lots) boundaries.

Two PRSA statements were issued. One PRSA statement was issued for the bulk of land where there was no evidence of potential contaminating activities, recommending that an environmental audit is not required for the proposed land use. For the area adjacent to the farmhouse and storage sheds the PRSA statement stated that an environmental audit was required for the prosed land use. A figure was attached to each PRSA statement showing where the boundaries of the proposed audit were in relation to the proposed development.