NSW planning authorities regulate contaminated land that is not 'significantly contaminated' through the planning and development process. These lands do not pose an unacceptable risk to human health or the environment under the current, approved use of the land.
The planning and development process is subject to the Environmental Planning and Assessment Act 1979 (EP&A Act), State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP), and the Managing Land Contamination: Planning Guidelines (PDF 219 KB) (Managing Land Contamination – Planning Guidelines). The process ensures that:
- planning authorities consider contamination when making rezoning and development decisions
- local councils provide information about land contamination on planning certificates issued under section 10.7 of the EP&A Act
- remediation is enabled and controlled through the Resilience and Hazards SEPP.
State Environmental Planning Policy (Resilience and Hazards) 2021
Planning authorities must consider, at the development approval and rezoning stage, if contamination will adversely affect the suitability of a site for its proposed use. If contamination makes it unsuitable for the proposed use, the land must be remediated before it can be developed. The Resilience and Hazards SEPP:
- makes remediation permissible
- defines when consent is required
- requires all remediation to comply with standards
- ensures land going through the development consent process is investigated if contamination is suspected
- requires councils to be notified of all remediation proposals.
Managing Land Contamination – Planning Guidelines
The Managing Land Contamination – Planning Guidelines aim to manage land contamination through the planning and development process. They provide advice to planning authorities on:
- early identification of contaminated sites
- consideration of contamination in rezoning and development applications
- recording and use of information
- ways to prevent contamination and reduce the environmental impact of remediation activities.
Section 10.7 certificates
The Managing Land Contamination – Planning Guidelines contain information on the use of section 10.7 certificates under the EP&A Act. Section 10.7(2) planning certificates must record that the land is:
- declared significantly contaminated by the EPA under the CLM Act
- subject to a management order issued by the EPA under the CLM Act
- subject to an approved voluntary management proposal
- subject to an ongoing maintenance order
- subject of a site audit statement.
Councils may also use section 10.7(5) certificates to record other information about contamination which the local council deems appropriate.
Review of contaminated land information on planning certificates
Planning certificates, issued under the Environmental Planning and Assessment Act 1979 (EP&A Act), should include information on land or water contamination – whether the contamination is current, remediated or has never occurred on the site.
In 2020 we conducted a review to better understand how local councils present contaminated land information on their planning certificates, and to make any necessary recommendations to make the information clearer and more consistent.
The review focused on the provision of information as it relates to section 59(2) of the Contaminated Land Management Act 1997, but also looked at contaminated land information in general. The review examined planning certificates for a sample of contaminated sites across NSW and looked at the range of associated council policies and procedures.
The review found that councils vary greatly in how they provide contaminated land information on planning certificates, and identified a range of issues and solutions.
The report of the review (PDF 4888KB) makes recommendations to address the identified issues and provides guidance for councils about the presentation of contaminated land information. The recommendations focus on implementation of existing legislative requirements and record keeping procedures.
Feedback from local councils
In December 2021, councils were invited to comment on the draft report. Local Government NSW (LGNSW) facilitated an online forum attended by over 90 officers from 55 councils to discuss the draft report and its recommendations. LGNSW provided a consolidated response, and we also received comments from 9 councils and the Northern Rivers Contaminated Land Program, representing 6 councils.