Contaminated land and planning

The Planning and Environment Act 1987 requires a planning authority when preparing a planning scheme or planning scheme amendment to ‘take into account any significant effects which it considers the scheme or amendment might have on the environment or which it considers the environment might have on any use or development envisaged in the scheme or amendment’ - section 12.

For planning permit applications, a Responsible Authority must consider ‘any significant effects which the responsible authority considers the use or development may have on the environment or which the responsible authority considers the environment may have on the use or development’ – section 60(1)(e).

Planning authorities must consider all relevant Ministerial directions when preparing a planning scheme or an amendment to a planning scheme.

Ministerial Direction No. 1 (MD1) aims to ensure that potentially contaminated land is suitable for a use which is proposed to be allowed under an amendment to a planning scheme and which could be significantly adversely affected by contamination.

An updated MD1 incorporating changes to align with the Environment Protection Act 2017 was gazetted on 27 August 2021.

Ministerial Direction No. 1 Potentially Contaminated Land (PDF, 25.5 KB) or (DOCX, 49.2 KB)

MD1 contains requirements for land, which the planning authority determines is potentially contaminated. The direction includes additional requirements for land proposed for sensitive uses (defined as residential uses, childcare centres, kindergartens, pre-school centres or primary schools), even if ancillary to another use, and for secondary schools and children’s playgrounds.

Where an amendment would allow these uses (whether or not subject to a permit) an environmental assessment under the Environment Protection Act 2017 is required to demonstrate that the land is suitable for its intended use. MD1 also addresses amendments relating to public open space and agriculture.

MD1 supports addressing the issue of contamination at the amendment stage but, where this is difficult or inappropriate, allows deferment of environmental audit system requirements by the application of the Environmental Audit Overlay (EAO) to the land.

Planning Practice Note 30 Potentially Contaminated Land provides guidance for planners and applicants on:

• how to identify potentially contaminated land
• the appropriate level of assessment of contamination in different circumstances
• appropriate provisions in planning scheme amendments
• appropriate conditions on planning permits.

Planning Practice Note 30 - Potentially Contaminated Land (PDF, 214.2 KB) or (DOCX, 91.6 KB)

In addition to the many clauses requiring consideration of the potential impacts to the environment, amenity and human health, the Victoria Planning Provisions contains specific clauses relating directly to the consideration of potentially contaminated land.

These include:

• Clause 13.04-1S - Contaminated and potentially contaminated land
• Clause 45.03 – Environmental Audit Overlay
• Clause 65.01 – Decision Guidelines, Approval of an Application or Plan
• Clause 73.01 – Meaning of Terms – General Terms (Potentially Contaminated Land)
• Clause 37.05-8 - Docklands Zone
• Clause 37.07-6 - Urban Growth Zone

The Environment Protection Act 2017 (EP Act 2017) and Environment Protection Regulations 2021 are designed to prevent harm to human health and the environment from pollution and waste. This includes harm from past pollution and waste related activities and incidents.

The EP Act 2017 also establishes a range of duties, powers and functions relating to circumstances where pollution or waste has already impacted land or groundwater, making it ‘contaminated’ for the purposes of the Act.

In addition to the General Environmental Duty, which aims to prevent harm relating from activities from arising in the first place, the EP Act 2017 introduces two new duties that apply to those in control or management of contaminated land: the Duty to Manage Contaminated Land and the Duty to Notify Contaminated Land.

More information on what the EP Act 2017 means for business and managing contaminated land can be found on the EPA website:

• What the new Act means for Victorian businesses
• EPA's approach to managing contamination in Victoria
• Understanding your contaminated land duties

Former industrial lands are increasingly being targeted for redevelopment with urban infill and renewal projects to accommodate future urban growth. Industrial and any other site where chemicals or wastes are handled, stored or disposed of has the potential for contamination. These sites often carry a legacy of contamination from practices that are unacceptable by today’s standards.

See the EPA website for more information on what activities can cause contamination.

Identifying contamination is important because it can cause harm to human health and the environment. Where a site is contaminated, the local environment, including the soil, indoor or outdoor air, surface water or groundwater, may be unsafe for site occupants. Immediate and long-term health effects may occur where people are exposed to unacceptable levels of contamination.

Planning must ensure that land undergoing a change of use and development is suitable for its intended future use and does not pose an environmental or human health risk.

Contamination of land and groundwater can pose a range of immediate or long-term risks to human health and the environment.

See the EPA website for information on the risks of harm posed by contamination.

Some land uses and activities are highly likely to be associated with contamination.  These are listed in Planning Practice Note 30 (PPN30) and include heavy industry, businesses that used dangerous chemicals, and businesses with underground fuel storage.

Please note that the list in PPN30 is not exhaustive, and in some cases it will be obvious that land is potentially contaminated by its appearance, or by the nature of another use or activity not listed.

Where in doubt, a planning authority, under Ministerial Direction No. 19 (MD19) can refer the planning application to EPA for advice.

Victoria Unearthed is an interactive map including a range of datasets to help you find out more about land and groundwater contamination and past business activities on land across Victoria. Victoria Unearthed is not a definitive source of information about contamination. It is a tool that helps you find information to support further investigation.

Victoria Unearthed includes up-to-date spatial data from EPA and DELWP on:

• Environment Audits conducted under the Environment Protection Act, including links to audit reports
• EPA’s Priority Sites Register
• EPA Licenced Sites
• Groundwater Quality Restricted Use Zones (GQRUZ)
• the Victorian Landfill Register – current and historical landfill sites
• Environmental Audit Overlays.

Victoria Unearthed also includes mapping of historical business listings from Sands & McDougall directories between 1896 and 1974, to help investigate whether potentially contaminating business activities may have once occurred on a site.

See https://www.environment.vic.gov.au/sustainability/victoria-unearthed/about-the-data for more information on datasets in Victoria Unearthed.

Planning Practice Note 30 (PPN30) provides guidance on determining which type of environmental assessment is appropriate for a given planning scenario.

Whilst the various planning instruments outline what must be done to comply with the planning system, PPN30 outlines in more detail the application of the instruments, including how decisions are made and what evidence is required.

Environmental audit is defined under part 8.3 of the Environment Protection Act 2017. An environmental audit is formally established under the audit system as an assessment of the nature and extent of the risk of harm to human health and environment from contaminated land, waste, pollution or any activity, and recommends measures to manage those risks.

Environmental audits can only be undertaken by an EPA appointed auditor. EPA maintains a list of appointed auditors on their website to help with selection of an auditor.

More information regarding environmental audits is available on the EPA website

Defined under s 204 of the Environment Protection Act 2017, a preliminary risk screen assessment (PRSA) is primarily a desktop assessment (sometimes with limited physical sampling) which must be conducted by an EPA appointed auditor.

Preliminary risk screen assessments (PRSAs) look for possible land contamination. PRSAs relate to a site’s existing or proposed future use. PRSAs also:

• work out whether there’s a need for an environmental audit
• recommend the scope for an environmental audit.

Only EPA appointed environmental auditors can perform PRSAs.

PRSAs don’t replace environmental audits. Environmental auditors do PRSAs to find out whether there’s a need for more detailed assessment.

More information on the PRSA is available on the EPA websit

The most appropriate type of assessment will depend on the various circumstances of the site. These may include site history, including neighbouring sites, any known contamination and the proposed use of the site. Planning Practice Note 30 outlines the most appropriate application of each of these instruments.

Use of a PRSA will depend on the potential for contamination and the proposal. A PRSA is recommended for scenarios where it is uncertain whether an audit is warranted. For example sites with a medium potential for contamination or where the proposal is relatively minor such as modifications to an existing use. For sites where there is evidence of contamination an applicant should in most cases choose to go directly to an audit. More detail is provided in Planning Practice Note 30.