For which planning proposals is this guidance relevant?
This guidance may apply for any strategic or statutory planning proposal involving potentially contaminated land (PCL) proposed for sensitive use, secondary schools or children’s playgrounds. In these cases, a requirement for assessment under the environmental audit system will apply, i.e. a Preliminary Risk Screen Assessment (PRSA) or environmental audit (audit)
What is the intent of this guidance?
This guidance aims to support planners in defining an appropriate spatial area for audit requirements during planning processes. It seeks to ensure that audits are required where there is a risk from contamination to the proposal, but also to provide a clear process to reduce the boundaries of audit requirements where safe to do so.
How is the spatial extent of environmental audit system requirements generally defined?
Generally, a requirement for assessment under the environmental audit system should be applied to the current cadastral area boundary (typically identified as a title or lot boundary).
The reason PCL requirements are typically mapped to cadastral boundaries is because PCL identification is based on the land use history, typically tied to a lot, rather than to a geographical area independent of previous site activities/ownership (as in the case of flooding). There are also many variables involved in estimating the potential extent of contamination within a site, as contamination can migrate underground. For these reasons, an assessment under the environmental audit system (which consists of an investigation by a suitably qualified environmental professional, independently reviewed by an environmental auditor) is needed to inform definition of any new boundary.
In limited circumstances, such as for very large former agricultural lots, the planning or responsible authority, with input from the proponent/applicant, may determine that the spatial extent of an audit (versus a PRSA) requirement can be varied to within the cadastral boundary. Typically, such variation will follow completion of a PRSA demonstrating that a portion of the site requires an audit, while the remainder of the site does not.
When is it appropriate to pursue variation from the current cadastral boundary?
Reducing the spatial extent of audit requirements to within a cadastral boundary is generally most appropriate for large sites, where only a limited portion is expected to be contaminated. For example, for a large former agricultural site, the majority of the site may have been used for activities unlikely to cause contamination (such as grazing), while a small portion may have been used for ancillary contaminating activities such as farm fuel or chemical storage.
Since any reduction in audit boundaries will also need to align with a future lot boundary, future subdivision must be expected for the subject land.
When is it not appropriate to pursue variation from the current cadastral boundary?
Environmental audit system requirements should be mapped to the entire cadastral boundary in circumstances where there is complex contamination, for example where pollution may be mobile in groundwater or vapour and may pose a risk to the land. In these circumstances it may not be possible to estimate the full extent of potential contamination accurately enough to reduce boundaries with confidence.
Audit requirements should not be varied when there is no intention to subdivide the site – as stated above, the intent is that audit boundaries align with future lot boundaries.
Further, a reduction in the boundary of requirements should not be permitted where the remaining area subject to requirements would become too small to be economically viable to develop. In this case, the risk of “orphaning” – i.e. the contaminated portion never being cleaned up an redeveloped – is high.
A reduction from current cadastral boundary should also not be allowed by the planning or responsible authority in the absence of sufficient information to justify such as change (see recommended process below).
Things to be aware of before deciding to vary the boundary of an audit requirement
Often, proponents/applicants wish to vary an audit boundary based on a perception that the time and cost involved in an audit process will be significantly reduced if the area is smaller. However, time and costs involved in audits are generally not strongly related to the size of the site. Rather, they depend on the complexity of the contamination present, and the amount of remediation needed to make the site suitable for the proposal. For example, an audit of a 100 ha agricultural property may be significantly less expensive than an audit of a 1000 m2 former service station (depending on what activities have occurred on site).
This is particularly true with the introduction of the scoped audit system under the Environment Protection Act 2017. Undertaking an audit for an entire property, even if very large, may therefore have a similar cost to auditing just the contaminated portion, as most of the audit costs will be associated with that contaminated portion.
As undertaking a process to vary the boundary of an audit requirement does also require time and financial expense, the costs and benefits of seeking to reduce the audit boundary should be considered prior to proceeding, where audit costs are the primary driver.
When considering the costs of pursuing a variation, it can be useful to know that the cost of the PRSA process recommended is likewise not proportionate to the site area.
Where appropriate, what is the recommended process for defining the new boundary?
Where a site has been identified as PCL and is proposed for a sensitive use, under relevant policy, the planning or responsible authority must require it to be assessed under the environmental audit system, via either a PRSA or full audit.
If the proponent or applicant wishes to vary the boundary of any audit requirement, there may be an opportunity to achieve this via conducting a PRSA first.
The proponent or applicant should provide the planning or responsible authority with any prior environmental audit or PRSA statements applying to the land which may provide adequate evidence to redefine the spatial extent of requirements. Otherwise, the following process provides a recommended approach for defining a new boundary through using the PRSA instrument.
A PRSA is a preliminary (primarily desktop) assessment which confirms whether an audit is needed. Through undertaking a PRSA prior to decision, there is an opportunity to spatially scope the boundaries of any audit requirement to within the current cadastral boundaries (subject to the findings of the PRSA). This may lead to more efficient cost and time outcomes, when applied at appropriate sites.
Warning: there are no guarantees that the PRSA statement will recommend a reduction in the audit area for every site. For some sites, a PRSA may find that due to the nature of the contamination, it is not possible to determine, based on this primarily desktop assessment, that parts of the site are free from contamination. In this case, the boundary of the environmental audit requirement will need to remain at the cadastral boundary. Where the PRSA does not recommend a changed boundary, it will still add value, as the work will be used in any subsequent audit process, thereby reducing time/costs at the audit stage.
Steps in this process are as follows:
- The planning/responsible authority must determine that the site is PCL. This must occur prior to a PRSA being undertaken, as this determination provides the justification for requiring a PRSA from the applicant/proponent.
- By exception, the proponent/applicant may request that the planning or responsible authority consider a variation to the boundary of any audit requirement. They may provide any existing audit or PRSA reports where they have been undertaken.
- On request from the proponent/applicant to vary boundaries, the planning/responsible authority should consider the guidance above on when variation is appropriate (see headings above).
- If a variation appears appropriate, the planning/responsible authority could discuss with the applicant/proponent the option of undertaking a PRSA prior to the planning decision (if not already undertaken). For strategic planning proposals, the planning authority will also be seeking written views from EPA under Ministerial Direction 19 (this may occur here or later in the process). If the proponent/applicant wishes to continue, proceed to step 5.
- The applicant/proponent will undertake the PRSA and provide it to the planning or responsible authority for review. The PRSA will contain one or multiple PRSA statements, which will provide an opinion on whether an audit is required for the site, or designated sub-sections of the site.
- The planning/responsible authority must review the PRSA statements/s. In doing so, it is important to confirm:
- That the scope of the PRSA included all relevant use/developments for the land.
- Whether separate PRSA statements have been issued for parts of the site, and
- Whether the PRSA statement(s) recommended audits.
- The planning or responsible authority must require an environmental audit for the portion of the site recommended through the PRSA process. As appropriate to the proposal, the audit may be required at the time of the decision, or deferred via an Environmental audit overlay (strategic proposals) or a condition on planning permit (statutory proposals).
In cases where the above process has not been undertaken, the planning or responsible authority should undertake a precautionary approach and apply the environmental audit system requirement to the cadastral area boundary. This is because until an audit or PRSA is undertaken, there is still uncertainty on the extent of land that is potentially contaminated.
A developer has purchased a former farm that raised sheep. The site is proposed to be rezoned, then sub-divided for a new low density residential housing estate. The local council has requested that a preliminary risk screen assessment (PRSA), be undertaken to inform the planning scheme amendment. The area of the farm (the site) covers approximately 300 hectares. The majority of the site was used for grazing and had no history of use of pesticides. In the southeast corner of the site is a farmhouse and a series of large sheds used for equipment storage and maintenance covering an area of approximately 8,000 m2. Adjacent to the house is believed to be an old underground storage tank (UST) used for storing for heating oil. Adjacent to the sheds is also a sheep dip and a chemical storage area. The environmental auditor assessed the site history of the site and found no other evidence of potentially contaminating activities at the site or neighbouring properties.
Given the potential for contamination around the old UST, sheep dip and chemical storage area, the auditor has determined that an environmental audit should be undertaken for part of the site. The area requiring an environmental audit is tied to the proposed future development areas and proposed sub area (lots) boundaries.
Two PRSA statements were issued. One PRSA statement was issued for the bulk of land where there was no evidence of potential contaminating activities, recommending that an environmental audit is not required for the proposed land use. For the area adjacent to the farmhouse and storage sheds the PRSA statement stated that an environmental audit was required for the prosed land use. A figure was attached to each PRSA statement showing where the boundaries of the proposed audit were in relation to the proposed development.