Posted on April 2, 2015 by Frances Tse

Details matter – The importance of accurate information on contamination and remediation

Accurate and thorough information should be provided to consent authorities in relation to contamination and remediation of land to ensure the consent authority can meet its obligations to consider contamination and remediation under State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55) . Failure to do so may mean that the Court will declare the consent invalid and restrain the carrying out of the development.

The Land and Environment Court in the recent case of Moorebank Recyclers Pty Ltd v Benedict Industries Pty Ltd [2015] NSWLEC 40 found that the development consent for a marina was invalid because the consent authority was provided with incomplete and incorrect information when it made its determination, and therefore could not properly comply with clause 7 of SEPP 55.

Under clause 7 of SEPP 55, a consent authority cannot consent to the carrying out of development on land unless:

• it has considered whether the land is contaminated, and
• if the land is contaminated or requires remediation, it is satisfied that the land is suitable or will be suitable, after remediation for the purpose for which the development is proposed to be carried out, and that the land will be remediated before the land is so used.

For certain types of land, the consent authority must also consider a report prepared by the applicant that specifies the findings of a preliminary investigation of the land  carried out by the applicant for development in accordance with the contaminated land planning guidelines.

In Moorebank, the Court found that:

• the applicant did not provide a report in the form required by clause 7 of SEPP 55, and
• while the consent authority was satisfied that the land would be remediated and made suitable for the proposed use, its satisfaction was based on incorrect information.

In relation to the report, there was clearly no specific report prepared to satisfy clause 7 of SEPP 55.  An argument was put that there was no breach of the requirement to provide the report because the consent authority had before it various documents which, when read together, contained all the information that was required in the report.

The Court did not accept that argument, in part because the various documents were not all prepared by the applicant (as required), and in part because the various documents did not, even when read together, set out ‘findings’ of a preliminary investigation.

In respect of the consent authority being satisfied that the land would be remediated, its satisfaction was based on incorrect information provided to it to the effect that a previous consent required remediation of the land. In fact the previous consent only required rehabilitation, which fell short of remediating any contamination. As a result, the Court found that the consent authority’s ‘satisfaction‘ miscarried, and therefore it could not be said that that requirement under clause 7 was met.

The Court had power to make orders, other than a declaration that the consent was invalid and restraining the carrying out of development. However, having regard to:

• the purpose of SEPP 55 being to promote the remediation of contaminated land for the purpose of reducing the risk of harm to human health and the environment, and
• the fact that the principal means by which that aim was achieved was the requirement for specific information in a specific form to be provided for the consent authority’s consideration,

the Court considered that it was appropriate to declare the consent invalid and restrain the development. The breaches in this case squarely frustrated the purposes of SEPP 55.

Applicants for consent should ensure that they strictly comply with the requirement for a report in clause 7 of the SEPP 5, and consent authorities should refrain from determining development applications until they have all information necessary for them to properly perform their functions under clause 7.