PPN30: Potentially contaminated land

Land use planning and potentially contaminated land

Development of land provides an opportunity to address contamination and mitigate any risks posed to human health, the environment, and building and structures. Contaminated land can often be safely used and developed following appropriate remediation, provided any necessary controls to manage residual contamination are implemented.

While many parties have obligations in managing potentially contaminated land, including duties under the Environment Protection Act 2017, this practice note provides advice about the role of the planning system and applies to situations where a planning approval or control applies.

Potentially contaminated land is land:

1. used or known to have been used for industry or mining
2. used or known to have been used for the storage of chemicals, gas, waste or liquid fuel – other than minor above-ground storage that is ancillary to another use of the land, or
3. where a known past or present activity or event occurring on or off the land may have caused contamination on the land.

Planning scheme amendments

Section 12 of the Planning and Environment Act 1987 requires a planning authority, when preparing a planning scheme or planning scheme amendment, to ‘take into account any significant effects which it considers the scheme or amendment might have on the environment or which it considers the environment might have on any use or development envisaged in the scheme or amendment’.

The Ministerial Direction 'Potentially contaminated land' contains more specific requirements for land which is determined to be potentially contaminated. Additional requirements apply for land proposed to be used for sensitive uses, defined as:

• residential uses
• child care centres
• kindergartens
• pre-school centres or primary schools, even if ancillary to another use
• secondary schools
• children’s playgrounds.

Where an amendment allows these uses, whether or not subject to a permit, a process under the environmental audit system administered by the Environment Protection Authority (EPA) is required to demonstrate that the land is suitable for its intended use. The Ministerial direction also details requirements for amendments relating to public open space and agriculture.

Where land has been determined to be potentially contaminated, but it is difficult or inappropriate to meet environmental audit system requirements at the amendment stage, the requirement to apply the environmental audit overlay (EAO) may be deferred.

The Ministerial Direction 'Preparation and content of amendments that may significantly impact the environment, amenity and human health’  requires a planning authority to seek the views of EPA when undertaking a strategic planning process and preparing a planning scheme amendment that may significantly impact Victoria’s environment, amenity and/or human health due to pollution and waste, including those relating to potentially contaminated land.

A planning authority must also consider the planning policy framework of the VPP, including clause 13.04-1S Contaminated and potentially contaminated land. Clause 13.04-1S aims to ensure that contaminated and potentially contaminated land is or will be suitable for its intended future use and development, and that this land is used and developed safely.

Planning permits and planning scheme requirements

Section 60 of the Planning and Environment Act requires a responsible authority, before deciding on a permit application, to consider ‘any significant effects which the responsible authority considers the use or development may have on the environment or which the responsible authority considers the environment may have on the use or development’. Section 60 is applicable to potentially contaminated land, which may affect, or be affected by, use or development.

Clause 65.01 of the VPP requires a responsible authority, before deciding on a permit application or approval of a plan to consider as appropriate ‘Any significant effects the environment, including the contamination of land, may have on the use or development’.

In some cases, potentially contaminated land will have been previously identified through a planning scheme amendment process and included in an EAO or other measure. The presence of an EAO means a determination has already been made that land is potentially contaminated, and that a process under the environmental audit system will be required before the land is used or developed for a sensitive use, a secondary school or children’s playground.

Further information regarding the broader legislative and policy framework for managing contaminated and potentially contaminated land can be found at environment protection.

The environmental audit system

The environmental audit system is legislated under the Environment Protection Act. It provides for the appointment of environmental auditors by EPA and a system of preliminary risk screen assessments (PRSA) and environmental audits, which may be used to inform land use planning for potentially contaminated land. These processes provide a high level of assurance as auditors must be independent and are responsible to EPA and the people of Victoria.

Under s 204 of the Environment Protection Act, the purpose of a PRSA is to:

• assess the likelihood of the presence of contaminated landand
• determine if an environmental audit is required and
• if an environmental audit is required, to recommend a scope for the environmental audit.

Under s 208 of the Environment Protection Act, the purpose of an environmental audit for land use planning purposes is to:

• assess the nature and extent of the risk of harm to human health or the environment from the contaminated land
• recommend measures to manage the risk of harm to human health of the environment from the contaminated land
• make recommendations to manage the contaminated land, waste, pollution or activity

When an environmental audit is specifically for land use planning purposes, the scope of the audit must identify the proposed use of the site. Where an audit assesses the use or proposed use of the site, an auditor must include a statement regarding the suitability of the site. The auditor will make one of the following three statements:

• the site is suitable for the purposes specified in the statement or
• the site is suitable for the purposes specified in the statement if the recommendations made in the statement are complied with or
• the site is not suitable for the purposes specified in the statement at the time the statement was prepared.

Both a PRSA and environmental audit result in the issue of a formal statement and accompanying report which is publicly available on the EPA website. Under s 210 of the Environment Protection Act, the statement must be provided to the relevant planning and responsible authority within five business days of issue. 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 (for example a potential purchaser). An environmental audit or PRSA statement reflects the condition of the site at the date of issue.

For further information on the environmental audit system see the EPA website.

National environment protection measure

The National Environment Protection (Assessment of Site Contamination) Measure 1999 (ASC NEPM) establishes a nationally consistent approach to the assessment of site contamination by regulators, site assessors, auditors, landowners and developers.

Processes under the environmental audit system follow the ASC NEPM methodology, and other contaminated land investigations conducted by suitably qualified environmental consultants should also adhere to it.

The ASC NEPM establishes the first stage of investigations for contaminated sites as the preliminary site investigation (PSI), a primarily desktop investigation to establish the site history, and develop a conceptual site model (CSM). The CSM 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 purpose of the PSI is to recommend whether the land warrants further field investigation. Where this is the case the NEPM provides standards for further assessment.

For further information on investigations defined under the NEPM, see the NEPC website.

Assessing planning proposals for potentially contaminated land

3 steps are involved in assessing a planning proposal relating to potentially contaminated land:

1. Is the land potentially contaminated?
2. What assessment is required?
3. Is the land suitable, or can it be made suitable for the proposed use?

1. Is land potentially contaminated?

To determine whether land is potentially contaminated land, it is necessary to obtain information on current and past land uses and identify any which are potentially contaminating.

Many planning and responsible authorities determine potentially contaminated land systematically across their area of jurisdiction and maintain a spatial database. This approach is encouraged, but potential contamination may also be determined on a case-by-case basis when preparing an amendment or assessing a permit application.

How is potentially contaminated land identified?

You can learn about potentially contaminating land uses from council records, state government publicly available databases, and applicant information.

Obtaining this information is a shared responsibility and every effort should be made by the applicant or proponent to obtain this information prior to submitting an application or planning scheme amendment.

When is more information needed?

If you cannot determine the current and historical uses of land and its surrounds, a site history review may be commissioned to gather further information. The site history review may be obtained through a request to the proponent or applicant under s 54 of the Planning and Environment Act. A request for a site history review must be made prior to a decision on a planning scheme amendment or permit application, to ensure that a determination on whether land is potentially contaminated can be reached.

If the review of the current and historical use of the land and surrounds shows a history of non-contaminating activities and there is no other evidence or suspicion for contamination, further investigation is not required.

Land uses or activities that might indicate contamination

Land defined as contaminated land under the Environment Protection Act will generally also meet the broader definition of potentially  contaminated land.

2. What assessment is required?

If land is determined to be potentially contaminated, the planning or responsible authority must require appropriate assessment as part of a planning scheme amendment or permit application.

Which assessment approach is appropriate?

For proposals involving sensitive uses, children’s playgrounds or secondary schools on potentially contaminated land, Ministerial Direction No. 1 and the EAO allow for either an environmental audit or a PRSA to be undertaken. Under the provisions of clause 13.04-1S an audit or PRSA may also be required for permit applications where no EAO applies. The role of a PRSA is to determine the need for an environmental audit.

The decision whether to undertake a PRSA or proceed directly to audit will depend on the potential for contamination and the proposal. A PRSA is recommended for scenarios where it is uncertain whether an audit is warranted: specifically those with lower potential for contamination (in the medium category) or for sites where the proposal is relatively minor – involving modifications to an existing use, rather than a change in use. For sites in the ‘high’ contamination category, where a new sensitive use is established, proceeding directly to audit is recommended, as there will usually be reasonable certainty that an audit will be required, and this approach is likely to provide the most efficient outcome.

Where the land has been identified as having a ‘high’ potential for contamination, but a use other than a sensitive use, children’s playground, or secondary school is proposed, a planning or responsible authority may require a preliminary site investigation (PSI), to inform decision making on next steps, including whether an environmental audit is warranted.

As the purpose of the PSI is to inform decision making on what (if any) requirements should be applied to a planning approval to address potential contamination, the PSI should be requested prior to notice being given for an amendment, or prior to a permit decision.

When requiring a PSI, the planning or responsible authority may specify that the limitations section of the PSI does not preclude reliance on the PSI by the planning or responsible authority. If a planning or responsible authority needs assistance in reviewing a PSI, guidance on managing PSI requirements is available at the environment protection page or the advice of a suitably qualified professional may be sought.

Recommended assessment approach

The environmental audit system and planning scheme amendments

For planning scheme amendments that propose to allow, whether or not by permit, a sensitive use, children’s playground or secondary school on land that is potentially contaminated, Ministerial Direction No. 1 requires a planning authority to satisfy itself that the land is suitable for the use by:

1. A PRSA statement stating that no audit is required, or
2. An environmental audit statement stating that the land is suitable for the proposed use, or
3. Where complying with 1 or 2 is difficult or inappropriate, deferring these requirements through application of an EAO or other appropriate measure.

Whether the audit system requirements are met at the time of amendment or deferred, the determination of whether land is potentially contaminated must always be made at the time of the amendment and be documented in the explanatory report.

Is assessment required at the time of the amendment?

Audit system requirements must be met at the time of the amendment unless the planning authority determines that compliance with this requirement is difficult or inappropriate, noting that assessment time and costs are not in themselves sufficient reasons to defer assessment.

Meeting a PRSA requirement prior to amendment is preferred because the PRSA can support consideration of the effects of the environment on the amendment pursuant to s 12 of the Planning and Environment Act and may avoid unnecessary encumbrances on the land, where the PRSA concludes no environmental audit is required for the range of uses allowed by the amendment. The outcomes of a PRSA can also assist a planning authority in determining appropriate planning controls to be included in the amendment.

Meeting an environmental audit requirement prior to amendment is preferred, while acknowledging that in some instances this will be difficult or inappropriate, for example where:

• the rezoning relates to a large strategic planning exercise or involves multiple sites in separate ownership
• it would be hazardous to access the site to take samples – for example, there is an operational industry on the site and safety risks are present.

For proposed amendments on potentially contaminated land where requirements under the environmental audit system need to be deferred, the planning authority should consider:

1. Whether there is reasonable confidence that the land can be made suitable for its proposed use – that contamination will not preclude that use.
2. Whether there will be a practical mechanism available to mitigate or manage any contamination identified during the environmental audit process, for example, through the design of the development.
3. Whether there will be a subsequent planning approval required; this may afford an opportunity to include any restrictions on use or conditions on development recommended by the environmental audit.

While most land can be made suitable for its proposed use through appropriate remediation, some highly contaminated land types, such as a landfill, or gasworks site, may never be feasible for certain zones such as residential zones, because complex and restrictive management measures are likely to be required to make this land safe for these purposes. Consideration of this aspect may be informed by EPA’s written view of a planning scheme amendment proposal provided under Ministerial Direction 19 ‘Preparation and content of amendments that may significantly impact the environment, amenity and human health’.

Where an environmental audit is to be completed in response to an EAO, it is necessary to carefully draft the planning provisions in the planning scheme amendment to address implementation of the environmental audit statement recommendations.

The requirements of the EAO operate for both existing and new sensitive uses. Alternative options which address the risk of potentially contaminated land should be exhausted before an EAO is applied to land with established sensitive uses. In this circumstance, there may be a risk to current occupants that needs to be addressed, and notification to EPA may be warranted.

Can an exemption be requested?

Ministerial Direction No. 1 provides for an exemption to be granted from the need to comply with the Direction. Examples of where such an exemption may be appropriate are:

• Potentially contaminated land is already used for a sensitive use, agriculture or open space.
• Prior industry use of the land was benign and unlikely to result in any contamination.
• If there is a regional strategy to manage contamination, for example former gold mining activities.

A planning authority may request an exemption from the Minister or Executive Director, Statutory Planning Services, Department of Transport and Planning. The Minister or Executive Director must consult with EPA before making a decision. The planning authority should consult with EPA before requesting an exemption.

The environmental audit system and planning permit applications

For permit applications relating to land that has been identified as potentially contaminated, the responsible authority must seek appropriate environmental assessment. In some, but not all cases, an EAO may already exist over the land.

If an EAO has been applied, and the proposed use is a sensitive use, secondary school, or children’s playground, the required assessment is set out in the EAO provisions: a PRSA statement that no audit is required, or an environmental audit statement that the land is suitable, is required before a sensitive use or the construction or carrying out of buildings and works associated with the sensitive use can commence.

Where a proposal involves both buildings and works and establishment of a sensitive use, the environmental audit requirement must be met prior to whichever of these commences first. For example, if buildings and works are undertaken to prepare a site for use as a child care centre, the audit must be undertaken prior to the commencement of construction or carrying out of buildings and works, not just prior to the commencement of the use.

Where EAO requirements do not apply, s 60 of the Planning and Environment Act, and clauses 65.01 and 13.04-1S of the VPP provide a basis for the responsible authority to consider the effect of potential contamination on a proposed use or development. At the time of the decision, the responsible authority must determine whether the land is potentially contaminated and identify the appropriate level of assessment.

An assessment under the environmental audit system is recommended for permit applications relating to sensitive uses, secondary schools, or children’s playgrounds. For other uses, if there is high potential for contamination, a PSI is recommended to inform the need for further action, which may include an audit.

Generally, environmental assessment, including as appropriate a PRSA or environmental audit, should be provided as early as possible in the planning process. A PRSA requirement will usually be feasible to undertake prior to the issue of a permit, but this may not always be possible or reasonable for an audit requirement. Requiring an environmental audit as a condition of a permit may be acceptable if the responsible authority is satisfied that the land can be made suitable for its proposed use or development – that contamination will not preclude the proposal.

This is usually the case where the site is a higher density residential or mixed-use redevelopment, where the management of contamination issues can be addressed as part of overall design or construction. It may not be the case for lower density development forms such as single dwellings where there are limited options to control the ongoing use or development. In disputed cases, one option may be to undertake a PRSA as part of the application process to understand the likely contamination and help inform decision making on whether the audit can be deferred to a permit condition.

Where an audit is made a condition of permit, refer to guidance and a model condition  to ensure that audit recommendations to make the land safe are provided for.

Remediation works

Works that are associated with a development and that might also be remediation works, such as excavation or basement construction, should not commence before the completion of an environmental audit if a planning permit has not been issued for the development.

Where a permit has been issued for a development and a requirement for an environmental audit is a condition of permit, the responsible authority should consider carefully wording the permit conditions to allow early building works that facilitate remediation of the site.

3. Is the land suitable, or can it be made suitable?

How assessment outcomes inform planning approvals

A planning or responsible authority must ensure that the effects of the environment on the proposal are considered, and that potentially contaminated land is suitable for its proposed use. The conclusions of assessments undertaken inform the planning or responsible authority in meeting this obligation.

If a PRSA process has been undertaken, the PRSA statement may either conclude that:

1. no environmental audit is needed or
2. that an environmental audit is warranted to determine site suitability.

If a PSI has been undertaken, findings can inform the planning or responsible authority in deciding whether an environmental audit, alternative assessment or management measures are appropriate, or in concluding that no further action is needed.

For sites where an environmental audit is required, the environmental audit statement:

1. provides an opinion on whether the land is suitable for the planning proposal and
2. makes recommendations on any conditions to be placed on the use/development to ensure contamination risks are managed.

For example, for an apartment proposal the audit may state the land is suitable subject to compliance with a recommendation to construct landscaped areas above ground level using imported soils.

To ensure that the site is made suitable for the proposal, applicable recommendations of the environmental audit must be translated into requirements of a planning approval. The legal basis for the planning or responsible authority to give effect to outcomes of an environmental audit is set out in s 12 and s 60 of the Planning and Environment Act, and clauses 65.01 and 13.04-1S of the VPP.

Where a planning scheme amendment applies, provision needs to be made for applicable recommendations to be given effect, or where possible used to inform the drafting of planning provisions. Where a planning permit applies, any environmental audit recommendations that apply to the construction or the design of the development must be included as requirements in that approval.

Where requirements are technical in nature, the planning or responsible authority may require written confirmation of compliance provided by an environmental auditor or suitably qualified environmental consultant. This requirement may already be prescribed within the environmental audit recommendation.

Recommendations that relate to long-term contamination management during ongoing occupation of the site do not usually need to be translated into the planning decision. They are managed by being incorporated, where appropriate, into tools available under the Environment Protection Act.

Managing environmental audit statement recommendations

Planning or responsible authority is responsible for:

• Implementing restrictions on permitted land uses.
• Giving effect to environmental audit statement recommendations that relate to the use and development of the land regulated by the planning scheme and apply prior to commencement of use, development or occupancy.

EPA is responsible for:

• Enforcement of obligations associated with the duty to manage and environmental audit recommendations that are listed in a mechanism under the Environment Protection Act, including:
  • a site management order
  • a remedial notice.

These typically relate to long term or ongoing monitoring or management.

Environmental audit statement available at time of decision

Where an environmental audit statement is available at the time of decision, the planning or responsible authority must first review the statement to confirm whether the land is suitable for the proposal. Second, the planning or responsible authority must consider any recommendations in an environmental audit statement.

Where recommendations relate to design or construction, provisions in a planning scheme amendment or conditions in a planning permit must reflect the recommendations in the statement. The applicant is required to demonstrate that the applicable recommendations included in the statement have been or will be met before the use commences.

For planning scheme amendments, the audit recommendations must inform the drafting of the relevant planning provisions including schedules, overlays and table of uses to give effect to and address the outcomes of the environmental audit statement.

If the recommendations of an environmental audit statement are impractical or inappropriate to include as requirements in a planning approval, this should be discussed with the environmental auditor who may choose to either re-issue the environmental audit statement or to confirm that the intent of the recommendations are adequately captured in the planning decision.

For any recommendations which are ongoing in nature, such as those requiring maintenance or monitoring, the planning or responsible authority should liaise with EPA or other agencies of appropriate jurisdiction where the nature of the conditions means that they are more properly considered by that agency, for example, liaise with EPA about conditions requiring ongoing management of groundwater.

Where no other option is available, a s 173 agreement under the Planning and Environment Act can be considered.

Requirements where an environmental audit is a condition of permit

Where an environmental audit is to be completed in response to a condition of a planning permit, it is necessary to carefully word the planning permit conditions to not only require an environmental audit statement to be issued but to also address the implementation of environmental audit statement recommendations which relate to design or construction.

Refer to the environment protection page for more detail.

Where an EAO applies to the site, it is not necessary to duplicate the requirement to obtain an environmental audit statement in a planning permit condition. However, where a planning permit is triggered, a responsible authority should consider including a planning permit condition to compel compliance with applicable environmental audit recommendations.

Enforcing environmental audit recommendations

Where a responsible authority becomes aware that an occupier is failing to comply with requirements set out in the planning scheme or planning permit, enforcement procedures under the Planning and Environment Act are available. These may include planning infringement notices, enforcement orders or prosecution through the Magistrates Court.

EPA is responsible for enforcing site management orders and remedial notices, including those that incorporate environmental audit statement recommendations. Where there is a failure to address matters identified in environmental audit statement recommendations this may also constitute a breach of the duty to manage by the person in management or control of the land.

EPA may issue a remedial notice under the Environment Protection Act. depending on the nature of the recommendations, other agencies may also have a role in enforcement.

Summary of key processes

This information summarises and compares assessment types most commonly used in land use planning, other types of assessment are provided for under the NEPM, such as the Detailed Site Investigation.

Further information is available at National Environment Protection Council.

For information on suitably qualified environmental consultants visit Work with an environmental consultant.

References

National standards for assessment of contaminated land

National Environment Protection (Assessment of Site Contamination) Measure National Environment Protection Council, 1999

AS4482.1 - 2005 Guide to the investigation and sampling of sites with potentially contaminated soil

Guidance on assessment of contaminated land in specific applications

Assessing the soil in children’s services – guidelines for environmental consultants Department of Education and Training 2011

Page last updated: 01/05/24