Site Contamination Assessment – Draft Practice Direction
As a further component of the planning reform agenda, a “Site Contamination Assessment” Practice Direction (PD) has recently been released for consultation. The PD proposes to introduce procedural steps into the development assessment process for dealing with contaminated, and potentially contaminated, sites.
Application
The PD will apply to all Relevant Authorities assessing development which proposes a “more sensitive use of land” against the Planning and Design Code (Code).
Where a more sensitive use is proposed, the Relevant Authority must not grant Planning Consent unless it has considered whether site contamination exists, or may exist, on the land: clause 5(1).
More sensitive use (Step 1)
The concept of a more sensitive use is new. The concept is defined in the PD by reference to a “Land Use Sensitivity Hierarchy” (LUSH) Table, containing 7 items in decreasing order of sensitivity.
If a proposed use is not captured in the LUSH Table, then the Relevant Authority must have regard to the sensitivity of the human populations proposed to be using the land and the risk of exposure of those populations to chemicals following the change of use.
Preliminary determination – whether site contamination exists or may exist (Step 1A)
Having determined that a more sensitive use is proposed, the Relevant Authority must then make a preliminary determination as to whether site contamination exists, or mayexist on the land, or “adjacent land”, or “other land”. It is not entirely clear how the Relevant Authority is to go about that task (and ideally the PD should be made clearer in that regard).
The intent seems to be that the Relevant Authority must consider whether class 1, 2 or 3 potentially contaminating activities (PCAs) have occurred on the site, or on “adjacent land” (being land within 60m of the land) or “other land” (which is land identified on the SA Planning Portal for the purposes of the PD which, presumably, will be linked to the EPA’s public register).
A list of class 1, 2 and 3 PCAs is contained in attachments to the PD. In total, 88 activities are listed. Presumably, the Relevant Authority will need to consult the Portal and, in addition, inquire as to whether any of those 88 activities has previously occurred on the site, or any land within 60m of the site. Needless to say, that could be an onerous task.
Practical questions arise as to how, and when, the Relevant Authority is to make that determination. In addition, Accredited Professionals in private practice may not have access to historical land use records held by councils. In any event, where analysis is required of historical records, this could be time-consuming. In many cases, it seems unlikely that a proper assessment will be able to occur within the 5 business days currently allowed for verification under regulation 31 of the PDI Regulations.
Consequences of a preliminary determination that contamination exists or may exist (Step 2)
Where the Relevant Authority forms a preliminary view that site contamination exists, or may exist, on account of a clause 1, 2 or 3 PCA on the land, adjacent land or other land, clause 6(1) provides that the application must include either a site contamination audit statement (SCAS), or a preliminary site investigation prepared by a site contamination consultant (PSI) “as set out in Schedule 8 of the Regulations”.
Currently, the Regulations do not contain any relevant requirements (with the exception of deemed-to-satisfy residential development which is considered in more detail below). Presumably it is intended that Schedule 8 will be amended for this purpose.
The Relevant Authority cannot require a SCAS, but this may be offered by the applicant. Where a SCAS is provided, presumably this will state that the land is suitable for its intended use, conditionally or unconditionally, which statement the Relevant Authority may rely on.
Where a SCAS is not provided, a PSI will be required. A PSI is a desktop study to identify site history or characteristics “that should be sufficient to provide a preliminary assessment of whether site contamination exists or not.” The PSI will then inform whether further steps are required under the PD, and whether referral to the EPA is required.
Because of the important role that a PSI or SCAS will play in the assessment process, it is critical that appropriate amendments are made to Schedule of the PDI Regulations. It is suggested that Schedule 8 should also include a requirement that a DSI and/or a final “Site Suitability” report be submitted at lodgement where the potential for contamination is identified in a PSI (see Step 3 below). This is particularly important given the constraints on Relevant Authorities in issuing requests for information in the PDI Regulations.
Detailed site investigations (Step 3)
If the PSI indicates the likely presence of site contamination, then a detailed site investigation (DSI) is required. A DSI is prepared by a site contamination consultant, and involves more detailed testing and investigation to confirm the extent of contamination and a remediation strategy, if appropriate. Planning Consent may be granted upon receipt of a statement of site suitability from a site contamination consultant: clause 8(1).
EPA Referrals
Under the draft Code, a referral to the EPA is triggered in relation to development involving a change in use to a more-sensitive use on land at which site contamination exists or may exist as a result of a class 1 or 2 PCA, or a site for which a site contamination audit report has already been prepared. This will largely be determined by the outcome of the PSI.
New dwellings (deemed-to-satisfy)
Development involving one or more new dwellings which is deemed-to-satisfy is subject to different requirements to those described above. In this case, Schedule 8 of the PDI Regulations does require the applicant to include a declaration indicating whether or not, to the best of his or her knowledge or belief, the allotment is or may have been subject to site contamination as a result of a previous use of the land or a previous activity on the land or in the vicinity of the land.
However, it would appear that the Relevant Authority is not bound by the applicant’s declaration, and may form its own view: see PD clause 2(ii)(B). Where a Relevant Authority has access to council records, it may have a duty to turn its mind to the potential for site contamination.
In cases where contamination is suspected, a site contamination audit report (prepared with input from a site contamination auditor) must be submitted with the application. It is unclear why this requirement is for a site contamination audit, which seems to be more onerous than in all other cases.
In any case, because the audit report is a requirement under Schedule 8, the application will not be verified (as a deemed-to-satisfy development) until the audit report is submitted. In this situation, an applicant would have the option of either submitting an audit report (to proceed to a deemed-to-satisfy pathway), or a DSI (to proceed to a performance assessed pathway).
Conclusions
The implications of the PD are substantial for the planning profession and local government sector. Consultation is open from 1 October 2019 to 28 February 2020. We encourage all affected stakeholders to carefully consider the PD and engage in the consultation process.
