Policy on former Unhealthy Building Land sites
Explanatory note
Before current environmental legislation, the old Public Health Act 1902 controlled the erection of buildings on land declared under that Act to be unhealthy for building. Land was declared unhealthy for building if it had been identified as low-lying or contaminated. Prospective purchasers could enquire if land was affected by such a declaration.
Examples of contamination include:
- contamination from using land as a landfill or as a nightsoil depot
- contamination by chemicals, radioactivity, asbestos or sawdust.
In 1990, the Public Health Act 1902 was repealed. Although the unhealthy building land provisions were continued in the Unhealthy Building Land Act 1990 (the UBL Act), it was noted in the second reading speech of the Act in Parliament that this Act would be repealed when it became redundant as a result of more recent environmental legislation. As the UBL Act now duplicates powers already exercised by councils and the EPA under other legislation, the Act is being repealed.
Low-lying land
Development on low-lying land is controlled under the Environmental Planning and Assessment Act 1979 (EP&A Act).
Low-lying land previously declared under the UBL Act can now be managed in accordance with the NSW Government Floodplain Management Manual (the Manual) (NSW Government 2001). The Manual enables councils to:
- develop and implement floodplain risk management plans to manage development on low-lying land
- record this information and provide it to the public.
Many councils have adopted floodplain risk management plans, and appropriate development controls have been incorporated into either policy documents or environmental planning instruments.
The Unhealthy Building Land Policy applies to remaining local government areas with land declared to be low-lying under the UBL Act, where floodplain risk management plans have not yet been adopted or implemented. The purpose of the policy is to ensure that:
- the land is identified as low-lying in any planning certificate issued under section 149 of the EP&A Act
- councils are aware the land has been identified as low-lying when considering the suitability of development proposed to be carried out on that land.
Contaminated land
Contaminated land is now managed under more recent environmental legislation including Contaminated Land Management Act 1997, the EP&A Act and the Protection of the Environment Operations Act 1997. The Unhealthy Building Land Policy will ensure that any contaminated land declared under the UBL Act is identified as contaminated in any planning certificate, and development of that land is managed in accordance with the requirements of current legislation.
The Unhealthy Building Land Policy
Name of this Policy
1. This Policy is called the Unhealthy Building Land Policy.
Purpose of Policy
2. This Policy has been adopted by the Environment Protection Authority (the EPA) because the Unhealthy Building Land Act 1990 (UBL Act) is being repealed. Planning certificates for land referred to in Schedule 1 or 2 must indicate that the land is subject to this Policy unless the Policy has ceased to apply to the land as set out in clause 5 below.
Land to which this Policy applies
3. This Policy applies to the land identified in Schedule 1 and Schedule 2.
Commencement of Policy
4. This Policy commenced on 28 April 2003.
When this Policy ceases to apply
5.1 This Policy ceases to apply to land in Schedule 1:
(a) if the land has been identified in a floodplain risk management study as being outside the area where flood related development controls should apply, and the council is satisfied that the land has been filled and drained to a standard that is suitable for the purposes for which it is zoned; or
(b) if the council has complied with the NSW Government Floodplain Management Manual (NSW Government 2001) by adopting a floodplain risk management plan through a local flood policy, development control plan or local environmental plan that applies to the land and was developed in accordance with that Manual.
5.2 This Policy ceases to apply to land specified in Schedule 2 if the council:
(a) has assessed the land in accordance with State Environmental Planning Policy No. 55—Remediation of Land and the Managing Land Contamination: Planning Guidelines 1998 (Department of Urban Affairs and Planning and NSW EPA 1998); and
(b) is satisfied that land is suitable to be used for the purposes for which it is zoned.
Planning certificates
6. Under section 149(2) of the Environmental Planning and Assessment Act 1979 (EP&A Act), councils must note on a planning certificate for land to which this Policy applies that:
(a) in the case of land referred to in Schedule 1, the land is affected by this Policy because it is low lying;
(b) in the case of land referred to in Schedule 2, the land is affected by this Policy because it is potentially contaminated.
Restrictions on development of Schedule 1 land
7. In determining an application under the EP&A Act to carry out development on land specified in Schedule 1, the council should take into account the New South Wales Government Floodplain Management Manual (NSW Government 2001), where relevant, and any council policy, development control plan or local environmental plan concerning the suitability of the site for the development by reason of the land being low-lying.
Restrictions on development of Schedule 2 land
8. In determining an application to carry out development on land specified in Schedule 2, the consent authority should consider State Environmental Planning Policy No. 55—Remediation of Land and the Managing Land Contamination: Planning Guidelines 1998 (Department of Urban Affairs and Planning and NSW EPA 1998).