What is Potentially Contaminated Land?
In the context of a planning permit or planning scheme amendment application, this is a question we get asked a lot by our clients in situations where their sites or properties have been designated potentially contaminated by the responsible authority, i.e. council; particularly for greenfield sites in semi-rural or rural areas where at face value, the land appears uncontaminated or ‘clean’.
The waters have been muddied further by the introduction of the new Environment Protection Act 2017 (the 2017 Act) and Environment Protection Regulations that took effect from 1 July 2021 which has resulted in an updated definition as to what potentially contaminated land is and the release of new or revised guidance documents that stakeholders in the planning and environmental consulting sector are still getting to grips with. This has caused some variation in interpretation of the new guidelines between councils resulting in differences in approach or delays which can make it difficult to plan appropriately.
In this post, we will define potentially contaminated land (according to the 2017 Act) and explain how sites can be flagged as such even though it’s not immediately obvious in layman’s terms.
Definition of Potentially Contaminated Land
The 2017 Act defines land as ‘contaminated’ if
‘waste or a chemical substance is present on or under the surface of the land at a concentration above background levels and creates a risk of harm to human health or the environment’.
– The definition includes contamination to groundwater as that is considered part of the definition of ‘land’;
– It also includes any activity or event that occurred off the land that may have caused contamination on the land.
For a substance to exceed the naturally occurring concentrations there must have, at some point in the past, been a ‘pollution’ event or events that explains the presence of the elevated concentrations.
The EP Act defines pollution as an ‘emission, discharge, deposit, disturbance or escape of…a solid, liquid or gas (or combination thereof)’.
The key point in the definition of ‘contaminated’ or ‘contamination’ is the risk of harm; typically assessed by considering the environmental values that are sought to be achieved or maintained in Victoria, i.e. an attribute or a function of the environment such as maintenance of ecosystems or protection of human health for example.
If a risk of harm doesn’t exist, the definition of contamination is not complete. Note that the expression risk of harm is akin to the term ‘hazard’ in that it does not confirm the significance of the risk – only that there is a chance or potential for harm.
How is Potentially Contaminated Land Identified in the Planning System?
Typically, as part of the planning application assessment process, a site gets flagged as potentially contaminated based on historical use of the land and surrounds with a high or medium potential for contamination identified via multiple information sources, i.e. a site history review or the presence of an Environmental Audit Overlay (EAO) or other planning tool.
According to the planning guidelines, greenfield or agricultural land is generally considered to have a low potential for contamination (unless specific contaminating activities have occurred such as commercial use of pesticides, biosolids application or farm waste disposal) which should mean that no further investigation is required by the responsible authority to make a planning decision.
So, if your rural site has a history of non-contaminating activities, all is good right? No need for Council to request further investigation? Not necessarily. The presence of infrastructure (on-or off-site) associated with potentially contaminating activities or other signs of contamination also gets taken into account; as part of a council site inspection for example. This includes not only obvious features such as old fuel bowsers & tanks (above and below ground), interceptor pits, drums, pipework, electrical transformers or industrial buildings, etc, but also the seemingly innocuous such as residential septic or sullage systems, vehicle parking / storage areas, stock sheds & races, grazing areas, market gardens, stockpiles (imported fill or from illegal dumping) and the old dilapidated shed that contains asbestos containing materials (ACM). Also, one needs to consider the potential for hidden issues like buried waste pits for example.
The presence of just one of these features on your site (or next to it) can be enough to trigger a potentially contaminated land designation resulting in significant effects on the commercial and financial aspects of your redevelopment project in terms of additional investigation time and associated costs.
Next Steps
Don’t assume that just because your site is in a rural or semi-rural area with no obvious historical commercial or industrial use that the issue of potentially contaminated land does not apply.
As part of its role, a responsible authority must consider the potential for land to be contaminated when proposing land use changes and even outwardly unremarkable features such as a septic tank or sullage tank on-site or the fact that market gardening occurred there decades ago might trigger the need to undertake further contaminated land investigation works – it doesn’t take much unfortunately.
The essential thing is to take a precautionary approach and understand the condition of the land (and all the possible cost and scheduling implications) at an early stage in the project lifecycle so that you can plan accordingly. You can make a start on this research yourself for free as there are several online land information resources you can use to obtain information on the potential for contamination on your site (and the surrounds).
And don’t worry too much if a potentially contaminated land issue(s) is flagged for your site as nine out of ten times it represents a low-level risk that can be safely managed.
If you want more information on the subject of potentially contaminated land and how it might relate to your site, download our free guide ‘What Every Property Developer Needs to Know About Potentially Contaminated Land: the complete handbook’.
In here you’ll learn more about:
- What potentially contaminated land is and the associated risks to your business;
- What steps you need to take to mitigate potential risk and the entities you need to work with; and
- What the implications are from a cost and management perspective.
