Contamination in planning matters - Victoria

5 min. read

Given the relatively recent introduction of the Environment Protection Act 2017, it’s logical to wonder what the impact of the new law is on the land use planning regime, particularly in the context of contamination. This Environment Express article looks at the most relevant changes coming from the Environment Protection Act 2017.

Overview

Contamination in Victoria is regulated both by the new Environment Protection Act 2017 (Vic), which fully commenced on 1 July 2021 and the longstanding Planning and Environment Act 1987.  Whereas the Environment Protection Act 2017 is the primary pollution and contamination legislation of the State, governing contaminated site management, regulatory enforcement (including investigation and remediation under notices) and the appointment of environmental auditors, it is the Planning and Environment Act 1987, and its related planning schemes and planning policies, which govern how contaminated sites can be developed and used.  

Key changes 

Under the Environment Protection Act 2017, there are new proactive duties to manage contaminated land, to notify of contamination and a new General Environmental Duty (GED). These all apply to all sites in the State. The requirements apply concurrently with any development planning process. This is a marked change from the previous legal regime which led to contaminated sites being overlooked by those in management and control of land until such time as the development environment made remediation viable. Now, all persons in management or control of land must take proactive action at all times to manage contamination (irrespective of site development potential). The compliance actions that may be required, are potentially additional to any contamination investigation needed for the planning process. 

Relevantly, a major change coming from the new Environment Protection Act 2017 is the new environmental audit system. A new Preliminary Risk Screen Assessments (PRSA) has been created and there are also changes to environmental audits, both of which are to be conducted by EPA appointed auditors. 

As one would expect, the planning scheme provisions relevant to contamination were updated under amendment Amendment VC203, gazetted on 1 July 2021, to align with the Environment Protection Act 2017 coming fully into force. Planning Practice Note 30 and Ministerial Direction No 1 - Potentially Contaminated Land were also updated.

New considerations for the development journey

Some of the things that I think are helpful to consider with regard to contamination in the planning context are set out below and relate to this conceptual "roadmap" infographic for navigating through a development process - at least so far as contamination is concerned (I don't seek to map out the statutory process, merely some interesting touchpoints along the way). 

1 - Pre-acquisition due diligence is paramount

In light of the post-acquisition legal regime comprising liability and proactive duties for a person in "management or control" of land and also applicable to those conducting activities on land (under the GED), it is essential for all purchasers to have a clear understanding of contamination by conducting due diligence before site acquisition. If purchasing land for future development purposes, it’s important to understand at the outset that the contamination risks at the site (including risks from surrounding sites) may ultimately be a matter that comes before the responsible authority and therefore has potential to increase the cost and time for development (if investigations or audits are required).  For this reason pre-acquisition due diligence is paramount. What level of investigation is needed depends on the site, but if you are buying and know you will need to do construction or subdivision or earthworks, then intrusive investigations that provide empirical evidence of contamination risk is likely to be essential. 

2 – Current owners or occupiers of a proposed development site 

As an owner or occupier, if you are in "management or control" you will already have proactive management duties with respect to contamination. It is important to reflect on the knowledge you already have and ensure compliance with the new requirements as necessary. The knowledge you already have includes any historic studies you are in possession of, and awareness you currently have, in relation to contamination. It might be necessary to revisit pre-2021 studies in the light of the 2021 standards for notifiable contamination and commission further work as needed. To avoid duplication of cost and time in investigating contamination matters in compliance with the Environment Protection Act 2017, it is worthwhile to map out what direction you may need to take or wish to take with the planning permit process or planning scheme amendment process for your site and what level and type of investigation is ultimately going to be needed.

3 - Pre-planning application 

Planning Practice Note 30 provides that it is necessary to obtain information on current and past land uses and identify any which are potentially contaminating. Many planning and responsible authorities are said to determine potentially contaminated land systematically across their area of jurisdiction and maintain a spatial database. This approach is said to be encouraged, but potential contamination may also be determined on a case-by-case basis when preparing an amendment or assessing a permit application. The Practice Note lists a number of information sources (arguably as a minimum that should be evaluated). 

The material issue is that in order to determine whether land is "potentially contaminated land" for the purposes of the Planning Scheme and Ministerial Direction No 1, it is necessary to evaluate current and historic site uses and contaminating activities. Table 2: Land uses with potential to contaminate land of Planning Practice Note 30, seeks to provide an expansive but not exhaustive list of such uses and activities. Evaluating current and historic uses and contaminating activities, may be done by searching publicly accessible registers such as Victoria Unearthed or procuring a contaminated land search from a reputable provider or commissioning a preliminary site investigation from an appropriately qualified environmental consultant.

4 - Application 

Planning Practice Note 30 states that sourcing information about "potentially contamination land" is a shared responsibility and every effort should be made by the applicant or proponent to obtain this information prior to submitting an application or planning scheme amendment.

5 - RFIs 

If insufficient information is put to the responsible authority in a planning application, a request for further information, particularly in the form of reports set out in Planning Practice Note 30 at Appendix 2: Summary of key processes used to inform land use planning for potentially contaminated land may be made. The responsible authority may seek this under s54 of the Planning and Environment Act 1987 and the further information may take the form of a site history review comprising either a preliminary site investigation (PSI), a PRSA, or environmental audit. A request for a site history review must be made prior to a decision on a planning scheme amendment or permit application, to ensure that a determination on whether land is potentially contaminated can be reached.

6 - Referral to EPA 

Under section 52 (1)(d) of the Planning and Environment Act 1987, responsible authorities may seek the advice of EPA in relation to land use and development proposals where referral or notice of an application is not otherwise required. 

7 - Responsible authority's decision 

The responsible authority is to ensure that contaminated or potentially contaminated land is or will be suitable for the proposed use, prior to the commencement of any use or development (Clause 13.04-1S) and to do this it will as a preliminary step make a determination as to the existence of "potentially contaminated land" (Planning Practice Note 30). As to the determination of whether or not there is a risk of potential contamination, a PSI and PRSA are potentially of assistance, but the drawback with both processes is that they are principally desktop reviews and consequently may not reflect true site conditions. The difficulty in attacking this task is that there is only one statutory vehicle of the options presented in the Practice Note, being the environmental audit under section 211 of the Environment Protection Act 2017, that can arguably properly provide advice on the question of site suitability. Understanding what level of documentation is likely to be needed, at what point, and whether it will withstand scrutiny and legal challenge is an important part of mapping out the direction, timeline and steps in the development approval process.

The legal stuff

This article is drawn from a presentation given by Gabrielle Guthrie to Legalwise Seminars on 2 March 2022. The content was current at the date of the presentation. 

All the information in this article and on this website and any downloads are intended only to provide a summary and general overview on matters of interest. 

It is not intended to be comprehensive nor does it constitute legal advice or establish a lawyer - client relationship.  Whilst attempts have been made to ensure that the content is current, Gabrielle Guthrie and Guthrie Legal do not guarantee its currency. You should always seek independent legal or other professional advice on specific cases and before acting or relying on any of the content.

If you have any questions about this topic, or to get an update or discuss how contamination risk management might affect your organisation, please get in touch.