Contamination Investigations – the Requirements for Your Next DA

Consent authorities are becoming increasingly reluctant to grant development consent subject to a condition that investigations into the nature and extent of contamination can be carried out after, instead of before, the granting of consent. This type of condition is known as a 'deferred commencement condition'. There have been instances previously where consent authorities have granted development consent subject to a deferred commencement condition for the carrying out of contamination investigations. However, in the current consent climate consent authorities are less willing to grant a deferred commencement condition for this purpose. This is a reflection of a series of Court decisions which clarify the requirements in State Environmental Planning Policy No 55 '€“ Remediation of Land (NSW) (SEPP 55), discussed below.

Determining the Nature and Extent of Contamination

An essential step in preparing a development application (DA) is gathering information about whether, and to what extent, a proposed development is on land that is contaminated, and the remediation that may be required to make the land suitable for development. SEPP 55 and its related Planning Guidelines address the requirements for the form and substance of these investigations, which will vary from project to project depending on the likelihood and extent of contamination. Where a development involves changing the use of land, a preliminary site investigation (PSI) must be prepared to be considered by the consent authority. Where a PSI indicates potential contamination and the site is unsuitable for its proposed use, a detailed site investigation (DSI) will also be required.

Preconditions

The aim of SEPP 55 is to promote the remediation of contaminated land in order to reduce the risk of harm to human health and the environment. Clause 7 sets out sequential and interrelated preconditions that a consent authority must be satisfied with before granting consent. These can be separated as follows: Precondition 1: if contamination is or is likely to be present:

1. Preparation of a PSI in accordance with the SEPP 55 guidelines;
2. Preparation of a DSI when a PSI considers one is warranted;

Precondition 2:

3. Is the land contaminated?
4. If yes to (3), is the land suitable for the proposed development in its contaminated state? and
5. If no to (4) and remediation is required to make the land suitable, will the land be remediated before it is used for the new purpose?

Where consent is granted but disregards the above preconditions, it will be invalid. A common example is where a consent authority grants consent based on an inadequate PSI. The repercussions of an invalid consent include the developer being redirected to prepare additional investigations or to have the consent challenged in Court, with added time and expense. We note that there are plans to replace SEPP 55 with a new Remediation of Land SEPP which is expected to commence in 2020. The new SEPP will incorporate the requirements of the current clause 7, as well as the purposes of a PSI and DSI which are currently set out in the separate SEPP 55 guidelines as referenced in SEPP 55.

Consent Climate

The following cases establish that the nature and extent of contamination is a fundamental planning matter which should be determined before the granting of consent. In Dexus Funds Management Limited v Blacktown City Council (No 3) [2011] NSWLEC 230, the applicant alleged that where Council granted consent for a shopping centre subject to a deferred commencement condition for contamination investigations to be carried out at a later time, the consent was invalid because it failed to consider the preconditions in SEPP 55. The Court agreed with the applicant, finding that the council had insufficient information to assess the DA and therefore to grant consent. In Moorebank Recyclers Pty Ltd v Benedict Industries Pty Ltd [2015] NSWLEC 40, the Court considered the validity of a consent granted for a marina development on a site once used for extractive activities. The consent was granted with a deferred commencement condition which provided that contamination investigations could be carried out at a later time. The Court found that the consent was invalid because the Panel should have been informed of the outcome of the investigations prior to granting consent. In Lippmann Partnership Pty Ltd v Canterbury '€“ Bankstown Council [2017] NSWLEC 1601, the Court found that the investigations must be prepared as part of the assessment of the DA and therefore before granting consent because:

• without a DSI Council would fail to consider the nature and extent of contamination;
• the suitability of a site is a key consideration in s 4.15 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act);
• the deferred commencement was not authorised by s 4.16(3) of the EPA Act; and
• if a DSI is prepared after consent is granted, the substance of the DSI may require the consent to be altered.

Implications

It is important to keep up-to-date with the current consent climate in order to understand the requirements in relation to contaminated land. With the changing consent climate and the imminent commencement of the new SEPP, approach us for advice on your next development to ensure that you are aware of the requirements for your DA.

Article by Caitlin Polo, Lawyer