Potentially Contaminated Land the Planning System Denise Turner, Senior Planner Regional Services Policy Environme

1. Potentially Contaminated Land & the Planning System Denise Turner, Senior Planner – Regional Services & PolicyEnvironment Protection Authority 4 December 2006

2. Mixed audience – part planners – want to know about the pl system – my presentation will be speaking to that Today’s session & DHS’s new publication - Council owned / operated facilities - where those facilities are existing but Council may be surveying their sites to see if they are affected by contamination - As a result we have a large number of non planners (property or asset officers etc) – what may be of interest to you is how pl system affects that role – with that audience in mind, I thought it would be worth pointing out:Mixed audience – part planners – want to know about the pl system – my presentation will be speaking to that Today’s session & DHS’s new publication - Council owned / operated facilities - where those facilities are existing but Council may be surveying their sites to see if they are affected by contamination - As a result we have a large number of non planners (property or asset officers etc) – what may be of interest to you is how pl system affects that role – with that audience in mind, I thought it would be worth pointing out:

3. As move through the presentation, keep this in mind, may help u to understand the pl systems connection to your role – so I don’t lose you completely.As move through the presentation, keep this in mind, may help u to understand the pl systems connection to your role – so I don’t lose you completely.

4. Background Regulatory Framework Considering Potentially Contaminated Land Permit Conditions & S.173 Agreements Applying an Environmental Audit Overlay

5. Land contamination has emerged as a major environmental and land management issue over the last 15 years The rezoning of industrial land for residential purposes or other sensitive uses has resulted in people’s exposure to contaminated land the subdivision of a former battery factory in Ardeer, later found to be contaminated, initiated Ministerial Direction No.1 & put planning at the forefront of this issue Highly publicised case in the late 80’s – greater focus on this issue in d-m in planning matters Highly publicised case in the late 80’s – greater focus on this issue in d-m in planning matters

6. Ministerial Direction No.1 applies to the rezoning of land and clarified Councils obligations & actions in regards to contamination, for planning scheme amendments – audit requirement No clarification in relation to planning permits Confusion about PCL - when to get an environmental audit, can an audit be required for a planning permit, when should the Environmental Audit Overlay (EAO) be applied?

7. To address this confusion: EPA developed the SEPP (PMCL) 2002: Cl 13 & 14 clarify the obligations of planning & responsible authorities Joint DSE/EPA General Practice Note: Potentially Contaminated Land, 2005 PN was developed in consultation with Councils (SEPP reference group retained) (pl from Moreland, Maribyrnong, Banyule, Yarra) Some of these councils had a lot of experience (at forefront of pcl), others some experience but struggled with it, another – limited pcl – needed to develop a PN that worked for all council’s PN - provides a ‘framework’ to help Councils manage potentially contaminated land issues in the planning process Not designed to make planners ‘experts’ in contaminated land b/c is a confusing area – but creates a dialogue between pl & env processes – help work through thatPN was developed in consultation with Councils (SEPP reference group retained) (pl from Moreland, Maribyrnong, Banyule, Yarra) Some of these councils had a lot of experience (at forefront of pcl), others some experience but struggled with it, another – limited pcl – needed to develop a PN that worked for all council’s PN - provides a ‘framework’ to help Councils manage potentially contaminated land issues in the planning process Not designed to make planners ‘experts’ in contaminated land b/c is a confusing area – but creates a dialogue between pl & env processes – help work through that

8. Planning & Environment Act, 1987 requirements In preparing a planning scheme or amendment: Section 12(2)(a): Must have regard to the Minister’s directions Section 12(2)(aa): Must have regard to the Victoria Planning Provisions (VPPs) Section 12(2)(b): Must take into account any significant effects which the amendment might have on the environment or the environment might have on any use or development envisaged in the scheme or amendment Pl often focused on what the amendment / development will do to the area – it’s impact on its surrounds / environmentPl often focused on what the amendment / development will do to the area – it’s impact on its surrounds / environment

9. Planning & Environment Act, 1987 requirements Before deciding on planning permit application: Section 60(1)(a): Must consider the relevant planning scheme Section 60(1)(e): Must consider any significant effects which the use or development may have on the environment or the environment may have on the use or development

10. Planning Scheme / VPP requirements State Planning Policy Framework: Cl.15.06 – Soil Contamination: Objective: To ensure that potentially contaminated land is suitable for its intended future use and development, and that contaminated land is used safely Refers to MD1 for planning scheme amendments In considering planning applications for use of land used or known to have been used for industry, mining or the storage of chemicals, gas, wastes and liquid fuel, responsible authorities should require applicants to provide adequate information on the potential for contamination Often as a planner, it’s hard to justify why you need to ask for further information – ie. Require a full site history to consider pcl - this is your justificationOften as a planner, it’s hard to justify why you need to ask for further information – ie. Require a full site history to consider pcl - this is your justification

11. Overlays: Cl.45.03 – Environmental Audit Overlay (EAO): Purpose: To ensure that potentially contaminated land is suitable for a use which could be significantly adversely affected by contamination Requirement: Before a sensitive use (residential use, child care centre, pre-school centre or primary school) commences or before the construction or carrying out of buildings and works in association with a sensitive use commences, must get either: a certificate of environmental audit (clean bill of health) a statement of environmental audit (subject to conditions) ‘Before’ commencement If there’s an overlay, there’s no discretion, all b & w irrespective of how minor, will require an audit – council owned / managed facilities or private owners / occupiers, to do any works whether it’s minor works or a whole new development, will require a full env audit Council can’t decide to simply waive this requirement, once they have put the overlay on, you are bound to get an audit – only way round is to remove the overlay but that’s a pl scheme amendment and to remove it is a lot harder than putting it on – liability issues ‘Before’ commencement If there’s an overlay, there’s no discretion, all b & w irrespective of how minor, will require an audit – council owned / managed facilities or private owners / occupiers, to do any works whether it’s minor works or a whole new development, will require a full env audit Council can’t decide to simply waive this requirement, once they have put the overlay on, you are bound to get an audit – only way round is to remove the overlay but that’s a pl scheme amendment and to remove it is a lot harder than putting it on – liability issues

12. Planning Scheme / VPP requirements Particular Provisions: Cl.54 – One dwelling on a lot, & Cl.55 - Two or more dwellings on a lot and residential buildings Neighbourhood & Site Description & Design Response to include: And contaminated soils and fill areas, where known Any other notable features or characteristics on the site If the responsible authority decides the site description is not satisfactory, it may require further information under s.54 of the Act Little known / remembered piece of info – justification for getting information! Notable features: old storage tanks/ petrol station or another use next door that might have had an impact on the site Little known / remembered piece of info – justification for getting information! Notable features: old storage tanks/ petrol station or another use next door that might have had an impact on the site

13. Where an amendment will allow pcl to be used for a sensitive use, agriculture or public open space, a planning authority must satisfy itself that the environmental conditions of the land are or will be suitable for that use. For sensitive uses, MD1 states that an environmental audit (certificate or statement) is required For agriculture and public open space planning authorities can require an environmental audit, if appropriate

14. Cl 13 & 14 of the SEPP clarify Councils obligations: an audit is required where potentially contaminated land is to be changed to a sensitive use the audit requirement is irrespective of whether it’s a planning scheme amendment or a planning permit process (this is different to MD1) where potentially contaminated land is to be changed to a non-sensitive use then Council may still require information from the applicant and consider the need to impose conditions or an audit requirement

15. Contamination is not confined to industrial and mining land but could include any site where chemicals and wastes were or are handled, stored or disposed – an ancillary activity or an activity on an adjoining site The VPPs & the SEPP both have clauses that enable Council to seek information from the applicant about pcl - initially a detailed site history and, if necessary a site assessment Table 1 in the PN lists the uses (or ancillary activities) that have potential for contaminating land – if a use is of high or medium potential that would be a trigger to look closer Without repeating everything that our earlier speakers have said, want to make a few key pointsWithout repeating everything that our earlier speakers have said, want to make a few key points

16. Table 2 in PN helps to identify the level of assessment:  A = require an environmental audit C = no specific requirement B = a site assessment if insufficient info to determine if an audit is requiredSite assessments should not be used in lieu of an audit as they don’t provide the same level of assurance.* Depending on the results of the site assessment, Council decides if an audit is required * this relates to Councils obligations under the planning system, not Council as an owner surveyingtheir own existing facilities – unless the sitehas an EAO on it Site assessment feeds into an audit, so not money or time lostSite assessment feeds into an audit, so not money or time lost

17. Council might engage an environmental consultant:- to provide an independent review of a site assessment submitted by an applicant (prepared by an applicant’s environmental consultant - their advocate) - to get advice about the scope of an assessment to be requested of an applicant – greater confidence that the assessment submitted will be adequateCouncil may require the applicant to contribute financially to an independent review of theinformation (pg. 3 of PN)

18. Timing of an environmental audit:- as early as possible in the planning process- can be a condition of permit if Council is satisfied the level of contamination will not prevent the use- works associated with the environmental audit (including remediation) may be undertaken prior to a permit - but works associated with development which are also remediation works do not commence before completion of the audit – unless conditions on the permit facilitate staging of early building works that facilitate remediation

19. If a Statement of Environmental Audit is available at the time of decision, Council should: review any conditions on the Statement make provision in the amendment or permit to implement the conditions include a requirement that the applicant is to demonstrate the conditions have been met before the use / development commences liaise with other agencies, if necessary require a s.173 Agreement to manage any ongoing maintenance / monitoring requirements eg. groundwater monitoring

20. Where an environmental audit is to be required as a condition of permit, Council should: word the condition carefully to not only require the Certificate/Statement but also the implementation of any Statement conditions include a requirement that the applicant is to demonstrate the conditions have been met before the use / development commences include a condition that flags the potential for a s.173 Agreement if there are any ongoing requirements on a Statement issued The PN provides some standard conditions

21. Min Dir No.1 requires a Certificate or Statement before Notice of Amendment is given (in the explanatory note) However, it may sometimes be appropriate to delay this requirement if testing of the land before Notice of Amendment is difficult or inappropriate (ie. large strategic exercise and land is in multiple ownership) The mechanism to delay this requirement is the EAO By applying the EAO Council has made an assessment that the land is potentially contaminated and an audit is required

22. Zoning alone does not justify an EAO – an assessment that land is known to have been used for industry, mining or storage of chemicals, gas, wastes or liquid fuel, is necessary (detailed site history, site assessment) The EAO should not be used as a precaution to identify land that might be contaminated or to defer the decision about the status of the land Once applied, the EAO has no flexibility & Council has no discretion - all buildings and works associated with a sensitive use will trigger an audit (irrespective of how minor) The audit requirement is very costly & an EAO is very difficult to remove

23. When considering an amendment or permit, Council must satisfy itself that the environmental conditions of the land are or will be suitable for that use Council should obtain enough information from the applicant to make an assessment about the status of the land – site history, site assessment Where a previous use is listed as high or medium potential (in Table 2 of PN) then the site requires a closer look

24. Site assessments are not a substitute for an audit, they enable the next level of information to be obtained so Council can decide if an audit is required An EAO should only be applied where Council has determined the site is potentially contaminated Refer to the SEPP (PMCL) & the Practice Note DSE Planning Planet Program Next Potentially Contaminated Land Seminar - 28 March 2007