Following recent changes to the Environment Protection Act 2017 (Vic) (EP Act), the Department of Environment, Land, Water and Planning (DELWP) has released a Practice Note to provide guidance on potentially contaminated land, how to identify it, the assessment process, and how it can be addressed through planning permit applications and planning scheme amendments.
Potentially contaminated land
The Practice Note is aimed at businesses or persons that manage or are in control of land that could be potentially contaminated. It sets out the means of identifying potentially contaminated land and how to recognise the most appropriate assessment process. The Practice Note clarifies how the level of risk for contamination and the proposed use on the land can impact the suitability of a Preliminary Risk Screen Assessment, Preliminary Site Investigation and an Environmental Audit (Audit). Further, it explores the effect of an Environmental Audit Overlay or an application by DELWP in temporarily or entirely exempting a proposal from fulfilling its Audit requirements.
Duties and obligations
The Practice Note additionally provides guidance on the proper management of contaminated land as well as the new criminally enforceable duties and obligations to be aware of. Businesses or persons in management or control of land have a duty to manage contaminated land, notify the Environmental Protection Authority of confirmed contaminations, and comply with recommendations following an Audit. Failure to comply with said duties may result in infringement notices, enforcement orders, or prosecution through the Courts. Please see our previous article here which sets out these obligations and recent changes to the Planning and Environment Act 1987 (PE Act).
The Practice Note discusses which enquiries Permit Applicants and/or landowners should undertake to understand the risks involved with their land. Responsible Authorities similarly owe duties under the EP Act, PE Act, and the Victorian Planning Provisions to ensure proper consideration of land suitability prior approving permit applications for the use or development of such land.
How we can help you
HWL Ebsworth Lawyers acts on behalf of a variety of clients, including landowners and responsible authorities in a range of planning, environment and government matters including planning permit applications and planning scheme amendments. If you would like to discuss how this Practice Note affects your proposal, or any other matter, please do not hesitate to contact us.
This article was written by James Lofting, Partner, Madeleine Barlow, Solicitor and Emily Russell, Law Graduate.