Posted on February 6, 2018 by Katie Mortimer and Carlo Zoppo

Draft Remediation of Land SEPP

The Department of Planning and Environment (‘DPE‘) has announced a Draft Remediation of Land SEPP (‘Draft SEPP‘) which will repeal and replace the current State Environmental Planning Policy No 55—Remediation of Land (‘SEPP 55‘)

The Explanation of Intended Effect of the Draft SEPP is on exhibition to 31 March 2018. In this post, we look at some of the key changes that have been proposed.

The Draft SEPP will maintain the two categories of remediation work currently in SEPP 55:

  1. Category 1 – works that require development consent
  2. Category 2 – works that may be carried out without development consent

Changes to Category 1 works 

Category 1 includes remediation work that presents elevated risks, either during execution or in the event of unsuccessful or incomplete remediation.

The Draft SEPP proposes 16 new classes of remediation work that will fall within category 1 and therefore require development consent, as well as carrying over the category 1 provisions from SEPP 55.

The new classes are specific and detailed, and are designed to provide greater clarity as to when development consent will be required for remediation work.

Some new classes to note are:

  • excavation where the volume of soil to be excavated exceeds 3,000m3, or where the area of excavation exceeds 3,000m2
  • remediation where a long-term environmental management plan is or will be required, and
  • remediation where confirmation of successful completion is dependent on post-remediation monitoring.

Changes to Category 2 works

SEPP 55 currently requires the relevant local council to be notified before commencement and after the completion of category 2 works.

Under the Draft SEPP this requirement will continue. However in addition, category 2 works must also be reviewed and certified by a certified practitioner, with evidence of the certification submitted to council.

Pre-commencement notification

  • must include a remediation proposal prepared by a certified contaminated land consultant. This must certify that the remediation method and appropriate remediation category is supported by relevant data from the site. Other information and materials will be required to be submitted to council, including a remediation plan.

Post-work notification

  • must include a statement prepared by a certified contaminated land consultant specifying the work was completed in accordance with the remediation plan, whether the remediation has constrained the land, whether the land is suitable for the intended use, and any ongoing environmental management requirements.

Moreover, to ensure category 2 works are carried out consistently, the Draft SEPP will introduce standardised operational requirements for category 2 works that must be complied with.

Changes for Local Councils and Consent Authorities 

Local Council Remediation Policies will no longer impact categorisations  

Clause 9(f) of SEPP 55 currently makes work that does not comply with an applicable local council policy, made under the contaminated land planning guidelines, work that requires development consent.

The Draft SEPP will not give effect to council’s policies, removing this provision in order to ensure consistency across the State. In this way, the Draft SEPP will be the only instrument used to determine the categorisation of remediation work.

Ability to waive the requirement for a preliminary investigation 

Currently under SEPP 55, when development is proposed that would involve a change in land use, in specified circumstances a consent authority must consider a preliminary investigation of the land that has been carried out in accordance with the contaminated land planning guidelines.

Under the Draft SEPP a consent authority may waive this requirement, if the consent authority has knowledge that allows them ‘to be certain of the suitability of the land for the proposed use‘.

Other key changes of note

  • New clause 17 of the Draft SEPP will require a copy of any environmental management plan prepared for works to be provided to the relevant consent authority.
  • Transitional provisions will be included in the Draft SEPP that will apply to development applications lodged, and category 2 work notified, before the Draft SEPP commences.
  • The Draft SEPP will not include any strategic planning objectives or provisions, these will be contained in a Direction under s117 of the Environmental Planning and Assessment Act 1979.

DPE has also released draft ‘Managing Land Contamination: Planning Guidelines‘ that have been updated to reflect best practice. Read these and the Explanation of Intended Effect here.

Should you wish to discuss the proposed changes please contact Carlo Zoppo, Partner on 8235 9705 or by email, at carlo.zoppo@lindsaytaylorlawyers.com.au