Planner's Toolkit

To help identify where potentially contaminated land provisions apply, planning and responsible authorities may consider developing a checklist for planning proposals similar to the attached. This model checklist is based on the process for identifying potentially contaminated land set out in Planning Practice Note 30 – Potentially Contaminated Land.

Note that where this checklist is completed by a proponent or applicant, it will remain important for the planning or responsible authority to conduct their own assessment to determine if the land is potentially contaminated.

• Identifying Potentially Contaminated Land – Checklist for Proponents and Applicants (DOCX, 28.0 KB)

When requiring/receiving a preliminary site investigation as part of a request for information, application or proposed amendment, planning and responsible authorities may consider implementing a cover sheet similar to the following.

The coversheet is designed to be completed by the environmental consultant who has prepared the report and submitted alongside it, to facilitate the assessment and interpretation of the preliminary site investigation by the planner.

• Model Preliminary Site Investigation Cover Sheet (DOCX, 45.4 KB)

When requesting a Preliminary Risk Screen Assessment (PRSA) or Preliminary Site Investigation (PSI) it is important to carefully word the request to ensure what is submitted will meet the requirements of the planning or responsible authority.

The below model wording may assist in drafting requests. Tips are also included for planning permit conditions.

Request for Further Information – Preliminary Risk Screen Assessment

Example text for a request for further information:

An environmental auditor appointed under the Environment Protection Act 2017 must conduct a preliminary risk screen assessment in accordance with Part 8.3 of that Act, that is scoped according to the proposed use/development, and;

Issue a preliminary risk screen assessment statement for the land in accordance with s. 205 of the Environment Protection Act 2017

Request for Further Information – Preliminary Site Investigation

Example text for a request for further information:

A Preliminary Site Investigation, that must:

1. Be prepared by a suitably qualified environmental professional to the satisfaction of the Planning/Responsible authority.
2. Be undertaken in accordance with Schedule B2 of the National Environment Protection (Assessment of Site Contamination Measure) 1999.
3. Not contain a disclaimer limiting the use of the report by the planning/responsible authority.
4. Make an unequivocal statement that either:
   1. The site is not likely to be contaminated to a level which would pose a significant risk to the environment or human health under the proposed use/development scenario. No further assessment is required, or,
   2. The site is contaminated, or there is likelihood of contamination, that would pose a risk to the proposed use/development scenario. There is sufficient information to derive a risk-based remediation or management strategy, or,
   3. The site is contaminated, or there is likelihood of contamination, that would pose a risk to the proposed use/development scenario. The site requires further investigation.

Planning permit conditions – best practice

Planning Practice Note 30 provides a basic model permit condition.  Those Councils who wish to develop this condition further may consider the following ideas (provided with thanks to the Councils who provided these suggestions).

• A requirement that the scope of any proposed assessment must be provided to the responsible authority and be to the satisfaction of the responsible authority.
• A general condition that buildings and works/use of land must comply with the provisions of the Environmental Audit Statement.
• More specific wording on the timing that evidence of compliance with audit recommendations must be provided – e.g. prior to the issue of an Occupancy Permit under the Building Act 1993.
• A requirement that proposed remediation works be documented and submitted to the responsible authority, and that the responsible authority approve such works.
• A note that:
  • the Environmental Audit Statement, including the Environmental Audit Report, must be submitted to the responsible authority within 5 business days of issue, as set out in s 210 of the Environment Protection Act 2017.
  • The person in management or control of the site must also provide a copy of any statement to any person who proposes to become the person in management or control of the site, such as a potential purchaser.

When can a Preliminary Site Investigation (PSI) be accepted to inform a planning decision?

Planning Practice Note 30 provides guidance on when a PSI is the appropriate assessment process for a given planning application – refer to Table 3, and the discussion below.

Sensitive uses, children’s playgrounds, and secondary schools:

Where the land meets the definition of “potentially contaminated land” and a “sensitive use”, secondary school, or children’s playground is proposed, an assessment under the audit system is always required – a PSI will not be sufficient (even the PSI concludes no further assessment is required.) This is because a PSI provides a reduced level of assurance when compared with an assessment under the audit system.

In these cases, the planning or responsible authority does not need to assess any PSI submitted but instead needs to advise the applicant/proponent to submit the appropriate assessment under the Environmental Audit system.  Note that a PSI will form part of these assessments.

Other uses

For other uses, a PSI is the appropriate assessment where land meets the definition of “potentially contaminated land” and the past use/activity on the site is in the “high potential” contamination category (as set out in Planning Practice Note 30 Table 2 and Table 3).  In these cases, the planning or responsible authority should review any PSI submitted to inform the planning decision and determine appropriate requirements to manage any contamination.  The below guide is intended to assist the planner in this process.

What standards apply to a Preliminary Site Investigation?

As set out in Planning Practice Note 30, a Preliminary Site Investigation should be undertaken in accordance with Schedule B2 of the National Environment Protection (Assessment of Site Contamination Measure) 1999.

What does a PSI contain, and how is this relevant to a land use planning decision?

As set out in Planning Practice Note 30 page 3, a PSI is a primarily desktop investigation.  The purpose of the PSI is to recommend whether potential contamination at the land warrants further field investigation (such as through an audit). The PSI will inform what (if any) requirements a planner needs to impose to ensure any contamination is appropriately managed.

A key part of the PSI will be to document historical activities on the site and surrounds. If a thorough PSI shows a history of non-contaminating activities and there is no other evidence or suspicion of contamination, the planner should review whether, in fact, the land meets the definition of “potentially contaminated”.

Where the site history confirms the land is potentially contaminated, the PSI will include a conceptual site model (CSM). The CSM will identify likely sources of contamination, and any pathways for contamination to reach receptors (such as site occupants), under the land use/development scenario. The conceptual site model can be a useful summary for a planner to understand the nature of potential risks at the site, and help inform discussions with the applicant/proponent and their consultants.

Sampling and testing of the land are not always necessary for a PSI, however, some PSI may include a limited preliminary sampling and analysis program.  Where this is the case, the PSI should clearly set out any results exceeding the applicable criteria.  This is an important indicator of a potential risk to the proposed use or development.

In land use planning, the conclusions provided by a PSI should be clear enough to support appropriate decision making on what, if any, further requirements should be incorporated into the planning decision making process.  More detail is provided in the sections below.

What conclusions should a PSI provide?

A PSI should make a clear statement that either:

1. The site is not likely to be contaminated to a level which would pose a significant risk to the environment or human health under the proposed use/development scenario. No further assessment is required, or,
2. The site is contaminated, or there is likelihood of contamination, that would pose a risk to the proposed use/development scenario. There is sufficient information to derive a risk-based remediation or management strategy, or,
3. The site is contaminated, or there is likelihood of contamination, that would pose a risk to the proposed use/development scenario. The site requires further investigation.

As set out in Planning Practice Note 30, a PSI should not include a limitations section that precludes reliance on the report by the planning or responsible authority.

A PSI should contain sufficient information to determine whether there is sufficient information to remediate or manage contamination, or where further investigation is required. While the PSI should give the consultant’s opinion on this point, ultimately the decision lies with the planning or responsible authority, who are responsible for reviewing this opinion and taking an active role in decision making.  More detail is provided in the following section.

How should a planning or responsible authority make decisions based on a PSI?

A PSI will contain a consultant’s recommendation for appropriate steps to respond to any identified contamination. However, as PSI are undertaken by the applicant/proponent’s consultant, without the involvement of an independent environmental auditor, the planning or responsible authority should also review the PSI. In some cases, the planning or responsible authority may reach a different decision to that recommended in the PSI. If the planning or responsible authority consider, based on review of the PSI, that further investigation is required, the planning or responsible authority may choose to require an environmental audit.

Some examples of where it may be appropriate to trigger an environmental audit are:

• The site is contaminated, or there is likelihood of contamination, that would pose a significant risk to the proposed use/development scenario, or
• The assessment recommends complex further assessment such as Detailed Site Investigation or Human Health Risk Assessment and the oversight of an auditor is considered warranted
• The condition of the site is not suitable for the current use.
• An additional level of certainty and independent review is required.
• Where the PSI itself, a peer review, or the EPA gives the opinion that an audit is required.

Escalation to audit may not be required if:

• The site is not likely to be contaminated to a level which would pose a significant risk to the environment or human health under the proposed use/development scenario.
• The site is contaminated, or there is likelihood of contamination, that would pose a risk to the proposed use/development scenario, but there is sufficient information to derive a risk-based remediation or management strategy.

When would an independent review be considered?

Where a PSI is submitted to support a planning decision, in some cases the planning or responsible authority may consider seeking an independent assessment of the information, for example, when:

• the level of contamination is very high, and the PSI includes highly technical detail
• there may be some doubt as to whether measures proposed to manage contamination, such as an Environmental Management Plan, are appropriate to manage the contamination identified
• Council would like an additional level of certainty.

The following methodology is designed to provide the most efficient approach for identifying potentially contaminated land for planning scheme amendments affecting large urban areas (precincts), with many sites in multiple ownership.  An example would be a formerly commercial or industrial area of a city which is being transitioned to enable residential development.

Methodology – Precinct Based Approach to Applying an EAO

Step 1: Identify Potentially Contaminated Land

Step 2: Apply the EAO

Scenario 1: Following assessment under the environmental audit system

The planning authority should remove the environmental audit overlay (EAO) if:

• the site is given a Preliminary Risk Screen Assessment Statement which is scoped to assess all relevant land use/development types, and states that an audit is not required for all such uses/developments.
• the site is given an Environmental Audit Statement which is scoped to assess all relevant land use/development types, and states that the site is suitable for all such uses/developments, without any recommendations.

In some circumstances where an environmental audit statement is issued with recommendations, it may also be possible to remove the EAO where there are minimum restrictions or recommendations on the use of the site, or the recommendations have been complied with. It is always important however to ensure the scope of the audit encompassed all relevant land use/development types.

Scenario 2: Where it determines that the land is not potentially contaminated

In some cases, the planning authority may have information to suggest that land within an EAO is not potentially contaminated. In this circumstance, the below method can be applied to confirm whether the EAO is warranted.

Land to which an EAO should apply

The mapping of potential contamination in the planning scheme differs from other environmental risks such as flooding where it is only the risk that is mapped. Generally, the EAO should be applied to the cadastral area boundary (typically identified as a title or lot boundary).

Where a planning authority is satisfied that there is sufficient information to identify all the areas of a site that are potentially contaminated (including contaminated groundwater or vapour that may pose a risk to the land) the application of the EAO to part of a site may be considered. Reducing the EAO extent should only be an option for large land parcels.  This is because where the the EAO is applied to too small a section of the site, that part may become economically unviable to develop and there is a high risk of the site becoming orphaned.

One option to obtain sufficient information to reduce the EAO extent (where appropriate) is a Preliminary Risk Screen Assessment (PRSA).  A PRSA can determine the spatial scope of any audit requirement. However, care should be taken to review the scope of the PRSA to confirm that it included all relevant use/developments for the land.

Where the boundary of the potential contamination is unclear or in the absence of identification of areas of potential contamination, a precautionary approach should be adopted by applying the EAO 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.

The primary purpose of management of potentially contaminated land is to avoid risk to the health of future occupants of the land, as they may be affected by exposure to contamination.

Below are best practice principles to guide planning and responsible authorities in making land use decisions on potentially contaminated land:

• The risk of contamination should be assessed as early in the planning process as possible.  This means that any required assessment, such as an environmental audit, should be conducted as early as possible.
• A new use or development should not occur on potentially contaminated land where the contamination risk is unknown, particularly when the proposal increases the risk of harm to human health.
• Both planning/responsible authorities and applicants should facilitate access to relevant information to support potential contamination investigations.
• An Environmental Audit Overlay (EAO) should only be applied where the land is first determined to be potentially contaminated.

The above principals can be used to guide decision making in the absence of more prescriptive guidance or policy.