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The information contained in this fact sheet is current as at 18 September 2006.

Topic 3 - Pollution

3.2. Contaminated Land

Contaminated land is land that contains substances that could be damaging to human health or to the environment. The key piece of legislation regulating contaminated land in New South Wales is the Contaminated Land Management Act 1997. The NSW legislation is based on the twin principles of polluter pays and minimising the risk of harm to human health and the environment.

‘Contaminated land' is legally defined as land where a substance is present at a concentration higher than is normally found on land in the same area and where the presence of that substance presents a risk of harm to human health or any aspect of the environment.1

Local councils have responsibilities in relation to contaminated land during the environmental planning and development assessment process. These responsibilities are discussed in more detail below.

For information about environmental planning and development assessment generally, refer to Topic 2 – Planning and Development.

The Environment Protection Authority (EPA) has powers to order the investigation and remediation of land which presents a ‘significant risk of harm' under the Contaminated Land Management Act.2 The EPA is only responsible for sites where it believes that there is a significant risk of harm from the contamination, although it also has a general duty to examine and respond to any information that it receives of actual or possible contamination of land.3

In cases where the contamination does not reach the threshold of being a ‘significant risk of harm', the responsibility falls to local councils.4

3.2.1 Contaminated Land, Environmental Planning and Development Assessment

Planning processes under the Environmental Planning and Assessment Act 1979 play a crucial role in the management of land contamination.

SEPP 55 – Remediation of Land

State Environmental Planning Policy No. 55 – Remediation of Land provides direction to local councils regarding development on contaminated land. The policy sets out the situations in which council is required:

• to consider contamination issues in relation to zoning and rezoning proposals;5
• to consider contamination issues in relation to development applications.6

The policy also sets out the circumstances in which development consent is required for the remediation of contaminated land.7

3.2.1.1 Environmental Planning

Local councils have the power to regulate the purpose for which land may be used, for example, as residential, commercial, industrial or agricultural space. This is generally done by zoning land for a particular purpose in a local environmental plan.9

State Environmental Planning Policy 55 requires councils, in some instances, to consider contamination issues before rezoning the land (for example, if the land has previously been used for certain activities, such as horticulture or agriculture).10

If the land is proposed to be used for a sensitive use, for example a school, hospital or child care centre, then a council must consider contamination issues if activities likely to give rise to contamination were permitted on the land previously, even if it is not known whether that activity was actually carried out.11

A council's consideration of contamination must include a preliminary investigation based on council's records about past use of the land.12

If the relevant land is contaminated to such an extent that it will need to be remediated before being put to a new use, then the council must be satisfied that this remediation will occur, for example, by putting relevant provisions in the local environmental plan.13

3.2.1.2 Development Assessment

State Environmental Planning Policy 55 imposes similar obligations on councils in relation to the assessment and approval of development applications. The council must consider the past uses of the land and the proposed use of the land before consenting to a development application.The developer must supply the council with a report on possible contamination of the land.15

If the report reveals that the land is too contaminated to be used for the purposes of the development, then the council may require the developer to carry out remediation works before approval will be granted. The developer may need to apply for separate development consent for the remediation works under State Environmental Planning Policy No. 55.16

If the land is sufficiently contaminated to present a significant risk of harm, the EPA must be notified and the regulation of the land may fall within the provisions of the Contaminated Land Management Act.17

3.2.2 Management of Seriously Contaminated Sites

The Contaminated Land Management Act,together with State Environmental Planning Policy No. 55, regulates the management of seriously contaminated sites in New South Wales.

The investigation and remediation powers under the Contaminated Land Management Act are triggered when land is contaminated in such a way as to present a ‘significant risk of harm' to human health or the environment.18 In making this assessment, the Environment Protection Authority must consider a number of matters, including:

• whether there have already been toxic effects on plant or animal life;
• whether the contaminating substances are present in toxic, persistent, bioaccumulative, or large quantities;
• whether there are ways for the substances to proceed from their current position to a position where they may harm human health or the environment (‘exposure pathways');
• the current and approved uses of the land and adjoining land, and whether these uses are likely to increase the risk of harm; and
• whether the substances have migrated or are likely to migrate from the land. 19

The EPA must also take into account relevant statutory guidelines (for example, the Guidelines on Significant Risk of Harm from Contaminated Land and the Duty to Report).20 These guidelines are publicly available online at: www.environment.nsw.gov.au.

3.2.2.1  Responsibility for Contamination

The Contaminated Land Management Act establishes a hierarchy of people who the EPA may order to carry out investigation or remediation work.21

The first choice is the person who had principal responsibility for the contamination. If it is not practicable for the investigation or remediation order to be given to that person, then the order is to be given to the owner of the land.22

If it is not practical for the order to be given to the owner of the land, then the order is to be given to the ‘notional owner' of the land. A ‘notional owner' is a person who has an interest in the land that enables the person to transfer the freehold title, and includes a mortgagee in possession. 23

3.2.2.2  Investigation Orders

If the EPA believes on reasonable grounds that certain land is contaminated in such a way as to present a significant risk of harm, it can declare the land to be an 'investigation area'.24

The EPA must publish the declaration in a newspaper and invite public submissions on whether or not an investigation order should be made. An investigation order is an order to the appropriate person to report on the nature and extent of the contamination, the harm and the risk posed by the harm.25

The order, while in force, is noted in a public register maintained by the EPA.26 Failure to comply with an investigation order is an offence, carrying substantial penalties, including additional penalties for each day that contamination continues. 27

3.2.2.3  Remediation Orders

If land has been found to be contaminated in such a way as to present a significant risk of harm, the EPA may declare the land to be a 'remediation site'.28

The land need not have been the subject of an investigation order before being declared a remediation site.29 As with the declaration of an investigation site, the EPA must advertise the declaration in a newspaper and invite public submissions.30

The EPA may then issue a remediation order, which may require the preparation of a remediation plan prior to works commencing.31 Failing to comply with a remediation order is an offence carrying substantial penalties, including further penalties for continuing breaches of the order.32

Remediation works may require development consent under State Environmental Planning Policy 55.33

3.2.2.4  Appeals

A person who is issued with an investigation order or remediation order may appeal to the Land and Environment Court within 21 days of the date of the service of the order on the person.34 The court may confirm, alter or revoke the order.35

3.2.2.5 Enforcement

The EPA may institute proceedings for offences under the Contaminated Land Management Act. If the EPA fails to take action or has not made a decision on whether to take action within 90 days of being requested to do so, then any person may take action to restrain a breach of the Act with the leave (or permission) of the Court.36

It is an offence to obstruct compliance action37 or to provide false statements in reports relating to contaminated or potentially contaminated land.38 In the event that a person has failed to take action to remediate a site, a public authority may carry out the remediation work and recover costs for any remediation work undertaken.39

Company directors may be ordered to investigate or remediate land at their own expense in certain circumstances.40 For example, if a director winds up a company in order to avoid complying with an investigation or remediation order, then the director may be personally required to carry out the works required by the order.41

3.2.2.6 Voluntary Agreements

The EPA can enter into a voluntary agreement with a person in respect of the investigation or remediation of the land. In such cases, the EPA may not then proceed to make an investigation or remediation order against the person, unless the terms of the agreement are not carried out.42

3.2.2.7 Site Audits

In certain circumstances,43 such as to secure compliance with the Contaminated Land Management Act 1997, the EPA may require an independent site audit by an accredited auditor. Site auditors are generally people with extensive experience in the investigation and remediation of contaminated land. Site audits may include an investigation of the extent of contamination and the formulation of a remedial action plan.44

3.2.2.8 Duty to Notify

A person who becomes aware that his or her activities have contaminated land in such a way as to present a significant risk of harm must notify the EPA of this as soon as practical.45

An owner of land who becomes aware that land has been contaminated in such a way as to present a significant risk of harm must also notify the EPA of that contamination, regardless of whether or not the owner was responsible for the contamination.46 Failure to notify is an offence carrying substantial penalties.47

3.2.2.4 Public Access to Information

Register

The Environment Protection Authority must maintain a public register of the actions it has taken in relation to contaminated sites which it has identified as posing a significant risk of harm.48 The register includes details about areas which have been declared investigation or remediation areas.49 The public is entitled to inspect and take copies of the register on payment of fees which are set by the EPA.50 The register is not, and is not required to be, a conclusive list of all the contaminated sites in NSW: it is only a list of those sites which the EPA has already identified as posing a significant risk of harm. The current register comprises records for 92 sites, and is not a true reflection of the large number of contaminated sites in NSW.51

Reasons for decision not to take action

If the EPA decides that land is not contaminated in such a way as to present a significant risk of harm, any person may request a written statement of reasons for that decision, unless a notice, declaration or order has already been made setting out those reasons.52 The statement of reasons must be provided to the person making the request within 30 days after the EPA receives the request. 53

3.2.3 Development Consent for Remediation Work

Under State Environmental Planning Policy No. 55, remediation work in sensitive areas – called 'Category 1 remediation works' – will require development consent.54 Category 1 remediation works include, but are not limited to:

• works for the purposes of designated development. See Section 2.1.2.1- Development Applications;
• works that are to be carried out on land declared to be critical habitat;
• works that are likely to have a significant effect on a threatened species;
• works for which consent is required under a regional environmental plan;
• works for which consent is required under another state environmental planning policy; and
• works to be carried out on land classified under an environmental planning instrument as coastal protection, escarpment, littoral rainforest, floodway, nature reserve or wetland.55

The Policy also declares that some remediation work, such as work which is required under a remediation order or work to remediate a site contaminated by the use of a cattle dip 56 – called ‘Category 2 remediation work' – does not need development consent.57

State Environmental Planning Policy No. 55 overrules any local environmental plan that requires a person to obtain development consent for Category 2 remediation works, or that provides that consent is not required for Category 1 remediation works.58

Where the policy provides that development consent is required, the consent authority will generally be the local council.

Category 1 remediation works that are not designated development or state significant development are deemed to be advertised development.59 This means that a consent authority must advertise the proposed works in a newspaper, put the development application on public display, and invite submissions from the public for at least 30 days after the date of publication of the notice.60 See Section 2.1.2.1- Development Applications

3.2.4 Preventing Land Contamination

In considering a development application, a local council may take into account possible future contamination of the land caused by the proposed activity.61 Conditions may be placed on a development consent to minimise the possibility of future contamination.62

Many activities that cause contamination will be ‘designated development'. In these cases, the developer must prepare an environmental impact statement, and members of the public can make submissions63 and are entitled to bring a merits appeal against any decision to grant consent. 64 See Section 2.2 –Development Assessment.

In addition, most contaminating activities will be defined as 'scheduled activities' under the Protection of the Environment Operations Act 1997,65 and will therefore require an environment protection licence from the Environment Protection Authority. 66 See Section 3.1.1 – Environmental Protection Licences.

An environment protection licence may contain conditions directed at preventing or minimising contamination due to pollution from the activity.67 The EPA may impose conditions requiring the person carrying out the activity to lodge a bond to cover possible future remediation works.68 A licence for a waste landfill site may include conditions requiring a closure plan to be prepared.69

3.2.5 Contaminated Land Offences

There are a number of specific offences under the Protection of the Environment Operations Act relating to contaminated land, including:

• storing, processing or disposing of waste without an environment protection licence;70
• allowing land that cannot lawfully be used as a waste facility to be used for disposal of waste;71
• wilfully or negligently causing or allowing any substance to leak, spill or escape;72 and
• polluting water, including groundwater.73

The Contaminated Land Management Act does not contain the offence of causing land to become contaminated.

3.2.6 Contaminated Land Notices

Regulatory authorities have a number of tools at their disposal which allow them to take action to prevent or clean up pollution causing contamination. For example, the EPA or a local council may issue a notice requiring pollution to be cleaned up. The notice may be issued to the person who caused the pollution or to the occupier of the land on which the pollution occurred.74 Failure to comply with a clean-up notice is an offence.75 See Section 3.1.2 - Pollution Notices.

Even if an activity does not require a pollution licence, the EPA or a local council may still issue a prevention notice76 if the activity is being carried out in an 'environmentally unsatisfactory manner'.77 The notice may require the person to do such things as install pollution control equipment, monitor pollution or to prepare a plan of action to control waste from the premises.78 Failure to comply with a prevention notice is an offence.79

A local council can also make an order under the Environmental Planning and Assessment Act 1979 requiring a person to stop carrying out an activity on certain premises if the activity is likely to constitute a threat to public health or public safety.80

Additionaly, local councils can make orders under section 124 of the Local Government Act 1993 requiring a person to do or refrain from doing things to ensure that land is kept in a healthy condition, or to store, process or destroy waste in a certain way, provided the activity is not regulated by an environment protection licence.

3.2.7 Responding to Land Contamination

Owners of land that may be contaminated should seek expert advice. People concerned about contaminated land should contact the EPA, their local council and the landowner to initiate remedial action.

Any person may commence court proceedings to restrain a breach of the Contaminated Land Management Act or the Protection of the Environment Operations Act. However, proceedings can only be commenced with leave of the Court.81

An environmental audit 82 or an investigation order 83 will often be needed to assess the seriousness of the problem. A management and remediation plan might also be required if there are environmental consequences off the site.84

If substances seep or wash from contaminated land to neighbouring land there may be other action that can be taken. See Section 3.1 – Water, Air and Noise Pollution.

3.2.8 Contaminated Land Research

In order to determine whether a particular site may be contaminated, you may need to consult a variety of information sources.

The EPA maintains a register of declared investigation and remediation sites and investigation and remediation orders.85 The Land Titles Office maintains records of land that has been declared unhealthy building land.

Government departments and agencies that have been involved with the site, as a regulator or occupier, may be able to provide further information. Examples include NSW Health, the Department of Primary Industries, WorkCover and the State Rail Authority.

The Department of Primary Industries is responsible for restoring mined lands and should be able to provide information about these lands. The Department of Defence maintains a register of sites affected by unexploded ammunition.

Local councils must include information about land contamination on section 149 certificates.86

A section 149 certificate (also called a “planning certificate”) must be issued to all prospective land buyers and are available to any person upon request.87 If land has been identified as contaminated under the Contaminated Land Management Act, or is subject to orders under that Act, then these things must be noted on the planning certificate.88

Local councils are exempt from liability in relation to anything done or omitted to be done in good faith in respect of assessing the likelihood of land being contaminated and the nature or extent of contamination as part of the council's planning functions (including issuing a s.149 certificate).89

Owners and occupiers may have written and oral records about past land use activities. Large industries may have detailed archives containing information about past use of their land. Libraries may have literature about the history of the district, maps and unpublished reports about local development.

References

1. Contaminated Land Management Act 1997, s. 5
2. Contaminated Land Management Act 1997, ss. 7 and 9; and Part 3. The Unhealthy Building Land Act1990previously covered unhealthy building land rather than contaminated land and defined unhealthy building land as land considered by the EPA to be 'prejudicial to health': s. 4(1). This Act has now been repealed, as there are adequate provisions for the management of contaminated sites in the Contaminated Land Management Act and the UnhealthyBuilding Land Policy.
3. Contaminated Land Management Act 1997, ss. 7, 9; general duty in s. 6
4. Contaminated Land Management Act 1997, s. 8.
5. SEPP 55 – Remediation of Land, cl. 6.
6. SEPP 55 – Remediation of Land, cl. 7.
7. SEPP 55 – Remediation of Land, cll. 8 and 9.
8. Contaminated Land Management Act 1997,s.105
9. For example, see the Warringah Local Environment Plan.
10. SEPP 55 – Remediation of Land, cl. 6.
11. SEPP 55 – Remediation of Land, cl. 6(4).
12. SEPP 55 – Remediation of Land, cl. 6(2).
13. SEPP 55 – Remediation of Land, cl. 6(1)(c).
14. SEPP 55 - Remediation of Land, cl. 7.
15. SEPP 55 - Remediation of Land, cl. 7(3).
16. SEPP 55 - Remediation of Land, cll. 8 and 9.
17. Contaminated Land Management Act 1997, s. 60.
18. Contamination Land Management Act 1997, ss. 7 – 9.
19. Contaminated Land Management Act 1997, s. 9
20. http://www.epa.nsw.gov.au/clm/guidelines.htm
21. Contaminated Land Management Act 1997,s.12(2)
22. Contaminated Land Management Act 1997,s.12(2)(a) and (b) respectively.
23. Contaminated Land Management Act 1997, s. 12(2)(c). There are some variations, for example, for cattle dip sites the appropriate person is the Director-General of the Department of Agriculture: Contaminated Land Management Act 1997, s. 12(3)
24. Contaminated Land Management Act 1997, s. 15, Division 2 Investigation.
25. Contaminated Land Management Act 1997, s. 17
26. Contaminated Land Management Act 1997,s.58
27. Contaminated Land Management Act 1997, ss 17
28. This must be noted on the Pea's public register while the declaration is in force. Division 3 of Part 3 of the ContaminatedLand Management Act 1997deals with Remediation.
29. Contaminated Land Management Act 1997,s. 21(1)
30. Contaminated Land Management Act 1997,s. 21(2)
31. Contaminated Land Management Act 1997, ss. 21-29
32. Contaminated Land ManagementAct 1997, s. 28. This may also involve a covenant on the land, s. 29.
33. SEPP 55 - Remediation of Land, cll. 8 and 9.
34. Contaminated Land Management Act 1997,s. 61(1)
35. Contaminated Land Management Act 1997,s. 62
36. Contaminated Land Management Act 1997, ss. 94-95
37. Contaminated Land Management Act 1997, s. 45
38. Contaminated Land Management Act1997, s. 46
39. Contaminated Land Management Act 1997, Part 3, Division 6, ss. 34 – 36.
40. Contaminated Land Management Act 1997, Part 7 .
41. Contaminated Land Management Act 1997,s. 63
42. Contaminated Land Management Act 1997, ss. 19-20 and 26-27
43. Contaminated Land Management Act 1997, s. 47(2).
44. Contaminated Land Management Act1997, s. 47(1).
45. Contaminated Land Management Act1997, s. 60(1), and Contaminated Land Management Regulations, cl. 7 requires notification to be given using Form 1.
46. Contaminated Land Management Act 1997, s. 60(2).
47. Contaminated Land Management Act1997, s. 60(1) and (2).
48. Contamination Land Management Act 1997, s. 58(1).
49. Contaminated Land Management Act1997, s. 58
50. Contaminated Land Management Act 1997, s. 58(2) – (5).
51. See Berveling S, The purchase, sale and development of Contaminated Land produced as part of the CLE program, Contaminated Land(27 October 2004), and Environmental Protection Authority of New South Wales State of the Environment 2000 ReportSydney, January 2001, at 143 (accessible at ht t p://www.epa.nsw.gov.au through the publications portal, accessed on 6 December 2004).
52. Contaminated Land Management Act1997, s. 106
53. Contaminated Land Management Regulation 1998, cl. 8.
54. State Environmental Planning Policy No 55 -- Remediation of Land, clause 8(2) provides that Category 1 remediation work requires consent; cl. 9 defines ‘Category 1 Remediation Work'
55. State Environmental Planning Policy No 55 -- Remediation of Landcl. 9
56. State Environmental Planning Policy No 55- Remediation of Land, cl. 14(b)(iii): the work must be carried out by or on behalf of the Department of Agriculture as part of the tick control program under the Stock Diseases Act 1923.
57. State Environmental Planning Policy No 55- Remediation of Land, cl. 14.
58. State Environmental Planning Policy 55, cll. 8(1) & 19
59. State Environmental Planning Policy 55,clause 13(1).
60. State Environmental Planning Policy No 55- Remediation of Land, cl. 13(2). The standard period for the inspection of a development application for advertised development is 14 days. However, under cl. 13(2) of SEPP 55 this is extended to 30 days for Category 1 remediation work which is advertised development.
61. State Environmental Planning Policy 55,cl. 7(1)(b).
62. Environmental Planning and Assessment Act 1979, s. 80A
63. Environmental Planning and Assessment Act 1979, s. 79(5)
64. Environmental Planning and Assessment Act 1979, s. 98
65. Protection of the Environment Operations Act 1997, s.5 and Schedule 1
66. Protection of the Environment Operations Act 1997, Chapter 3
67. Protection of the Environment Operations Act 1997, ss. 63 & 68
68. Protection of the Environment Operations Act 1997, ss. 70 & 298
69. Protection of the Environment Operations Act 1997, s. 76
70. Protection of the Environment Operations Act 1997, s. 115
71. Protection of the Environment Operations Act 1997, s. 144
72. Protection of the Environment Operations Act 1997, s. 116
73. Protection of the Environment Operations Act 1997, s.120
74. Protection of the Environment Operations Act 1997, s. 91(1)
75. Protection of the Environment Operations Act 1997, s. 91(5). The maximum penalty for failure to comply with a clean-up notice is, in the case of a corporation $1,000,000 with a possible further penalty of $120,000 for each day the offence continues and in the case of an individual the maximum penalty is $250, 000 with a possible additional $60,000 for each day the offence continues.
76. Protection of the Environment Operations Act 1997, s. 96
77. Protection of the Environment Operations Act 1997, s. 95
78. Protection of the Environment Operations Act 1997, s. 96(2) and (3).
79. Protection of the Environment Operations Act 1997, s. 97. The maximum penalty for failure to comply with a prevention notice is, in the case of a corporation $1,000,000 with a possible further penalty of $120,000 for each day the offence continues and in the case of an individual the maximum penalty is $250, 000 with a possible additional $60,000 for each day the offence continues.
80. Environmental Planning and Assessment Act 1979,s. 121B (item 8)
81. Contaminated Land Management Act 1997, s. 95 and Protection of the Environment Operations Act 1997,s. 219(1)
82. Contaminated Land Management Act 1997, Part 4, Audit of investigation or remediation.
83. Contaminated Land Management Act 1997, s. 17.
84. Contaminated Land Management Act 1997, s. 4, refer to definition of ‘remediation'.
85. Contaminated Land Management Act 1997, s. 58.
86. Environmental Planning and Assessment Regulation 2000, Schedule 4, cl. 10 and Contaminated Land Management Act 1997, s. 59(2).
87. Environmental Planning and Assessment Act 1979,s.149.
88. See Environment Planning and Assessment Regulation 2000, Schedule 4, clause 10, which lists the matters which must be shown on a planning certificate.
89. Environmental Planning and Assessment Act 1979,s. 145B

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