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Contaminated land is the lurking danger in potential development sites presenting not only the risk to health of future occupants but significant costs and delays for landowners obligated to remediate.
Planning provision changes to align with a new environmental protection framework to be implemented by the Environment Protection Act 2017 are currently on exhibition for public comment. The Department of Environment, Land, Water and Planning (DELWP) is managing the changes.
However, the commencement of the Act, originally scheduled to come into effect at the start of July this year, has been pushed back to 1 July 2021 as part of a raft of measures by the Victorian government to ease regulatory burdens in response to COVID-19.
The Environmental Protection Act 2017 establishes an obligation, the Duty to Manage Contaminated Land, requiring all owners and managers to manage the risks from contamination of land as reasonably practicable.
The proposed changes to the Victoria Planning Provisions (VPPs) reflect this obligation through a broadened definition of a sensitive use while setting a higher bar for identifying and, if necessary, managing contamination on the site before the use begins.
Sensitive uses, which currently includes residential, child care centre, pre-school centre or primary school, has been more clearly defined include kindergarten, secondary school and children’s playground. The measures apply even if the sensitive uses are ancillary to another use.
For additional clarity, the definition of ‘potentially contaminated land’ to be entered in the planning scheme in the General Terms at Clause 73.01 as meaning ‘land:
- used or known to have been used for industry or mining;
- used or known to have been used for the storage of chemicals, gas, wastes or liquid fuel above or below ground with the potential to cause contamination; or
- where known past or present activities or events on the land or offsite have the potential to have caused contamination.
The consistent use of these definition through the planning policy, Ministerial Direction, and Planning Practice note provides uniformity and clarity.
The main interface with this controls for a Permit Applicant will be where an Environmental Audit Overlay (EAO) has been applied to the site where it has been identified based on the above definition.
The proposed changes require an environmental audit statement to be issued by an environmental auditor confirming that the environmental conditions of the land were suitable for a sensitive use. This applies whether a permit is required or not.
Exemptions from the requirement are possible where an environmental auditor determines through a preliminary risk assessment that an environmental audit is not required or the construction or carrying out of works is not associated with a change of land use and does not include soil disturbance.
Where the audit is required, it must be issued before:
- Commencement of an agriculture use or sensitive use.
- The issue of a statement of compliance to subdivide land that would allow for potentially contaminated land to be used for a sensitive use.
- The construction of building or carrying out of works associated with a sensitive use, agriculture or public open space commences.
The agriculture and open space requirements are new, picking an area where there is a public health risk not previously addressed in the EAO requirements.
Ministerial Direction No. 1 – Potentially Contaminated Land will also be updated to include the revised definitions for potentially contaminated land and sensitive uses, refer to the updated environmental audit requirement, and measures to allow a planning authority to defer the requirement for an audit during planning scheme amendment process by applying the EAO to all potentially contaminated land.
The guidance provided in Planning Practice Note 30 – Potentially Contaminated Land has been refreshed in line with the new definitions including guidance on what form of assessment is appropriate for identification of potentially contaminated land.
The proposed updates can be viewed here and will be open for comment until Tuesday, 2 June 2020.
If you have a project with potentially contaminated land issues or would like to make a submission, feel free to call your Ratio contact to discuss further.
Author: Dean Savage, Senior Planner
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