New State Environmental Planning Policy (SEPP) for remediation of land

23 February 2018

The NSW Government is proposing an overhaul to policy on remediation of land and contamination including a new Remediation of Land SEPP and revised Contaminated Land Planning Guidelines.

The Government has released;

  • An Explanation of Intended Effect (EIE) for the proposed new SEPP; and
  • Draft Contaminated Land Planning Guidelines.

for public comment by the 31 March 2018.

The new SEPP and Contaminated Land Planning Guidelines are intended to replace the current SEPP No 55 – Remediation of Land and existing guidelines of the same name.

The main changes proposed include the expansion of categories of remediation work which requires development consent, a greater involvement of principal certifying authorities particularly in relation to remediation works that can be carried out without development consent, more comprehensive guidelines for Councils and certifiers and the clarification of the contamination information to be included on section 149 planning certificates.

The EIE outlines that whilst the proposed SEPP will retain the key operational framework of SEPP 55, it will adopt a more modern approach to the management of contaminated land. The SEPP will introduce new provisions to:

  1. Categorise remediation work based on scale risk and complexity as follows:
    • category 1 works present an elevated risk and will require development consent. This category of remediation work is proposed to be greatly expanded in the new SEPP; and
    • category 2 works may be carried out without development consent, as is currently the case.
  2. Category 2 remediation works are required to be notified to Council prior to and after the completion of the remediation works. The notification must be accompanied by certification from a certified contaminated land consultant. Standardised operational requirements will be introduced to Category 2 works;
  3. Environmental management plans for post-remediation management of sites and ongoing operation maintenance and management of remediation measures will be required to be provided to Council;
  4. Allow Council to waive the requirement that an applicant seeking to change the use of land is to provide the consent authority with a preliminary investigation into whether the land concerned is contaminated in specific circumstances (such as where a potentially contaminating activity has been carried out), if the Council has knowledge that allows them to be certain of theĀ  suitability of the proposed land use;
  5. The requirement to consider contamination when rezoning land will be removed from the new SEPP and dealt with by way of a direction under section 117 of the Environmental Planning and Assessment Act 1979; and
  6. Remove a provision giving effect to Council policies that specify local requirements for the management of contaminated land.

The draft Guidelines have been updated to reflect legislative changes at both Commonwealth and State levels, including the proposed changes to be made by the new SEPP. Some key proposed changes include:

  1. Outlining the role of the principal certifying authorities when dealing with contaminated land and site audits, including in particular their new role in relation to Category 2 remediation works;
  2. Comprehensively describe the role of Councils when dealing with contaminated land and site audits, including setting out the matters a planning authority should consider at each stage of the investigation and assessment process;
  3. Provide guidance on how to address the issue of possible contamination on land on a near-by site; and
  4. Clarifies the extent of information to be provided on section 149 planning certificates by Council and situations where potential contamination is not appropriate for inclusion on a section 149(2) certificate.

Transitional provisions for existing development applications already within the planning system will also be provided for in the new SEPP.

The EIE and draft Planning Guidelines are currently on exhibition and submissions are invited by 31 March 2018:

Written by Jane Hewitt, Partner and Danielle Le Breton, Special Counsel.

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