Contaminated Land

Contaminated land is defined by section 5 of the Contaminated Land Management Act 1997.

When is land contaminated?

• Substance at a concentration above the concentration at which the substance is normally present in, on or under (respectively), being a presence that presents a risk of harm to public health or any other aspect of the environment
• Section 5(1) of the Contaminated Land Management Act

What are contaminants?

• Substances that can pose a risk of harm to public health and the environment
• For example, substances can be heavy metals, volatile organic compounds (petroleum hydrocarbons, chlorinated solvents, pesticides, polycyclic aromatic hydrocarbons and nitrates.

What are the uses of land that could give rise to site contamination?

• Generally involve industrial, commercial and agricultural operations
• A list of activities known to give rise to site contamination is provided in the Model Policy

What is legacy contamination?

• The historical use of land that may have given rise to site contamination
• Schedule 6 of the Environmental Planning and Assessment Act.
• Councils will need to identify legacy contamination risk (and the potential for site contamination from historical land use) in their planning processes

Site assessment process

• To mitigate risk of harm to public health and the environment, and to ensure the land is suitable or can be made suitable for its proposed use.

Assessment of Site Contamination

The National Environment Protection (Assessment of Site Contamination) Measure 1999 provides a national framework and associated standards for the assessment of site contamination. The intent of this framework is to provide adequate protection of human health and the environment where site contamination has occurred, through the development of a nationally consistent approach to the assessment of site contamination.

It is intended for use by regulators such as the NSW EPA and Councils, and site assessors, environmental auditors, land owners, developers and industry. It provides a very detailed and consistent process for investigating contaminated land and sets national health-based standards for determining the risk of contamination to human and environmental health.

Assessments compare levels of contaminants at a particular site with the appropriate levels to protect against human and environmental harm. The assessment process considers the ‘source’, ‘receptors’ (on- and off-site) and ‘pathway’ concept.

The EPA has made or approved statutory guidelines for the assessment of site contamination in NSW consistent with the national framework. The EPA has also published and endorsed additional guidance on the management of contaminated land.

Best practice resources are provided on this platform to assist Councils navigate the assessment of site contamination process including:

• Selecting a consultant to undertake an assessment of site contamination
• Checklists that can be used to ensure Councils have the required level of confidence on a report provided by a consultant on the assessment of site contamination
• Interpreting and using a report on the assessment of site contamination in ‘land use planning’ and ‘development control’ processes
• Managing offsite transport of contaminants in soil

Contaminated Land Consultants

Councils rely on reports on the assessment of site contamination to determine whether land is suitable for its proposed use, or can be made suitable through remediation, and to confirm that the land does not increase risk of harm to human health and the environment.

The selecting a consultant fact sheet ( PDF | Word ) provides guidance to Councils on the required competencies and experience of consultants, and these requirements are mapped to specific processes and stages of the assessment of site contamination process. This fact sheet also outlines requirements of UPSS and asbestos consultants.

A report prepared by an appropriately qualified consultant will provide Council with the required level of confidence to make an informed decision.

If there is any doubt or concern on the content and/or finding of a consultant report, Council may consider the report to be subject to an independent reviewed by an ‘auditor’. The cost for the independent review can be placed on the applicant.

Pollution Prevention

Responsibility for the management of pollution and waste in NSW is shared by the EPA and Councils.

The NSW EPA is the appropriate regulatory authority (ARA) for activities under schedule 1 of the Protection of the Environment Operations Act 1997. Regulation of scheduled activities is through Environment Protection Licences (EPLs), and is primarily concerned with air, water, and noise discharge limits and waste management. Management of site contamination can occur under an EPL.

Councils are the ARA for non-scheduled activities under this Act. The exception is when Council is undertaking the activity and in this situation the NSW EPA is the ARA. Council’s ARA responsibilities are primarily concerned with small business, domestic premises and urban planning, as well as underground petroleum storage systems (UPSS).

Best practice resources are available to Councils to guide and inform development control decision making relating to pollution prevention.