Site Contamination Assessment

New Site Contamination Assessment Rules for South Australia

Concurrently with Phase 3 of the new planning system going live, new site contamination assessment requirements have come into operation throughout South Australia.

In particular, on 18 March 2021, two important instruments were Gazetted, namely the:

• Planning, Development and Infrastructure (General) (Site Contamination) Variation Regulations 2021 [1]; and
• State Planning Commission Practice Direction 14 (Site Contamination Assessment) (Practice Direction).

The Planning and Design Code (Code) was also amended to incorporate site contamination provisions, with further amendments being Gazetted on 25 March 2021.

It is important that planning and building practitioners, relevant authorities, compliance officers and land division engineers are aware of how these instruments now operate within the framework of the new system.

Overview of the new process

In essence, the new site contamination assessment process involves five key steps:

1. provision of preliminary site contamination reports at lodgement in certain cases [2]

2. mandatory EPA referrals [3]

3. requests for further information [4]

4. imposition of mandatory conditions [5]

5. confirmation of site suitability. [6]

These steps are described in more detail below. See also Appendix 1 for a flow chart of the process.

Step 1 arises prior to, or at the time of, lodgement of a development application.

Steps 2-4 arise during the planning assessment process.

Step 5 arises post-approval and prior to use, occupation or certification [7] as the case may be.

Step 1

Provision of preliminary site contamination reports at lodgement

1. New clause 2A has been inserted into Schedule 8 of the Regulations to require, in certain cases, provision of preliminary site contamination information at the time a development application is lodged.

2. Clause 2A contains two triggers, namely, where an application involves: [8]

2.1 a change in use of land to a more sensitive use; or
2.2 a land division that proposes a sensitive use.

3. If neither trigger is activated, additional site contamination information does not need to be provided.

Trigger 1 – A change in use to a ‘more sensitive use’

4. A change in use to ‘a more sensitive use’ is determined having regard to the Practice Direction, which ranks land use categories in terms of their sensitivity.

5. This information is contained in a table called the Land Use Sensitivity Hierarchy (LUSH) found in Clause 5 of the Practice Direction.

6. The LUSH lists land use categories from item 1 to 7, with item 1 being the most sensitive.

7. If the new use is categorised as more sensitive than the old use according to the LUSH, then it is considered a more sensitive use for the purposes of the site contamination assessment rules. [9] Accordingly, clause 2A will apply.

8. If the new use is categorised at the same level or lower, then the new use is not considered to be a more sensitive use and clause 2A will not apply. [10]

9. If the application is for a mixed-use development that contains a variety of uses, then the most sensitive use found within the development will be the use that determines what level of the sensitivity hierarchy classifies the entire development. [11] For example, if an application involves two uses: shops and domestic residential, it will be classed as category 1, not category 5.

Trigger 2 – A land division application for a ‘sensitive use’

10. The second trigger is a land division that proposes ‘a sensitive use’. [12]

11. A ‘sensitive use’ is defined in the Regulations to mean a use described in items 1 or 2 of the LUSH, namely: [13]

11.1 Residential class 1 - domestic residential.

11.2 Educational premises class 1 - pre-school or primary school premises.

11.3 Residential class 2 - commercial aged care or other residential care facility.

12. Land division applications for these uses will require preliminary site contamination reports to be lodged. If the application does not clearly articulate the proposed use of the proposed allotments, this information may be requested by the relevant authority.

13. However, a land division application will not be for a ‘sensitive use’ if the allotment has already been lawfully created for a residential purpose.[14]

Requirements at lodgement

14. Where either trigger is activated, clause 2A provides that the application must be accompanied by: [15]

14.1 a site contamination declaration form (SCDF);

14.2 a copy of the certificate of title;

14.3 a preliminary site investigation report (PSIR); and

14.4 a site contamination audit report (SCAR) if one has already been prepared in relation to the land.

15. An exception in the Regulations allows an applicant to dispense with the requirement to provide a PSIR if a SCAR has been prepared in the previous five years and certain other conditions are satisfied. [16]

16. Importantly, where clause 2A applies, an application will not have been validly lodged, and it cannot be verified, until the required information has been supplied by the applicant. Because of the important role of the SCDF and PSIR in the subsequent assessment process (discussed further below), it is critical that relevant authorities consider carefully whether clause 2A applies and, if so, that they insist on compliance prior to accepting or verifying the application.

Purpose and contents of a preliminary site investigation report (PSIR)

17. The purpose of the PSIR is to determine the likelihood of site contamination on the land (i.e. whether site contamination exists, may exist or is unlikely to exist) having regard to the site history and characteristics.

18. Clause 9(1) in the Practice Direction provides that it must be sufficient to:

(a) identify potential onsite and offsite sources of contamination (known as potentially contaminating activities) and

(b) determine potential chemical substances of concern; and

(c) identify areas of potential contamination; and

(d) identify potentially affected media (being soil, water and vapour).

19. While the Practice Direction is not prescriptive as to the contents of a PSIR, clause 9(2) suggests it will usually include a desktop study of the site characteristics, a site history, a site inspection and interviews with site owners and occupiers.

Requirements for a site contamination declaration form (SCDF)

20. A SCDF must be in the form prescribed by the Practice Direction. [17]

21. It must be prepared by a site contamination consultant or auditor.

22. Its purpose is to inform the relevant authority whether:

22.1 site contamination is unlikely to exist; or

22.2 site contamination exists or is likely to exist
so that the relevant authority can then determine what, if any, further steps are required.

23. If site contamination does not exist or is unlikely to exist, there is no need for further site contamination assessment.

24. Where site contamination exists or is likely to exist, further processing steps must be considered, namely:

24.1 whether an EPA referral is required by the Regulations (Step 2); or

24.2 if an EPA referral is not required – if further information in the form of a detailed site investigation report (DSIR) is required by the relevant authority (Step 3).

Step 2

Mandatory EPA referrals

EPA referrals generally

25. Step 2 involves a mandatory referral to the EPA in certain cases.

26. The referral requirements are found in Schedule 9 of the Regulations, clause 3, table, items 9A and 9B, which then call up Part 9.1 of the Code.

27. Where a mandatory EPA referral is required, the EPA must respond to the relevant authority within 30 business days, and has a power of direction. It is anticipated that the EPA will direct what, if any, further investigations are required as part of the planning assessment process, and whether conditions must be imposed.

Change in use of the land to a more sensitive use

28. In the case of a change of use to a more sensitive use, the referral trigger is expressed in the following terms:

Change in the use of land to a more sensitive use on land at which site contamination exists or may exist as a result of one of the following:

(a) class 1 activity (including where a class 1 activity exists or previously existed on adjacent land); or

(b) class 2 activity and the proposed use is a sensitive use.

or

Change in the use of land to a more sensitive use on land where one or more of the following applies:

(a) that is the subject of a notation on the relevant title under section 103P of the Environment Protection Act 1993 that a site contamination audit report has been prepared;

(b) subject to a notification of site contamination of underground water (known as a section 83A notification under the Environment Protection Act 1993), or where such a notification exists on adjacent land, shown on the South Australian Property and Planning Atlas;

(c) located within a Groundwater Prohibition Area as shown on the South Australian Property and Planning Atlas.

29. Various classes of activity (Class 1, 2 and 3 activities) are listed in Schedule 1 of the Practice Direction. Class 1 activities are more likely to have resulted in contamination than Class 2 activities, whereas Class 2 activities are more likely to have resulted in contamination than Class 3 activities. Classes 1-3 combined contain a total of 88 activities, most of which are industrial in nature but also including such things as waste depots, former landfills, certain agricultural activities, wineries, service stations, airports and council works depots.

Land division proposing a sensitive use

30. In the case of land division proposing a sensitive use, EPA referral is required where site contamination exists or may exist at the land because of one or more of the following circumstances: [18]

(i) a class 1 activity has been conducted on the land or on adjacent land;

(ii) a class 2 or class 3 activity has been conducted on the land;

(iii) the land or adjacent land is the subject of a section 83A notification under the Environment Protection Act 1993 that appears on SAPPA;

(iv) the land is within a groundwater prohibition area;

(v) the land is the subject of a notation on the certificate of title for the land under section 103P of the Environment Protection Act 1993 that a site contamination audit report has been prepared.

31. Comparing the two referral scenarios, a considerable degree of overlap is apparent. However, there is a subtle difference in respect of ‘class 3 activities’ conducted on the land, which trigger referral in the case of land division, but not in relation to a change in use to a more sensitive use. Referral is not required if a SCAR has been provided within the previous 5 years and other criteria are met.

Step 3

Requests for further information

32. In circumstances where Schedule 8 clause 2A applies but a mandatory EPA referral is not required, the relevant authority has a discretion to request the applicant to provide a more detailed site investigation report (DSIR). Such a request is made under s 119(3)(d) of the PDI Act.

33. A DSIR is intended for lower risk sites where site contamination may exist, but the circumstances don’t warrant a referral to the EPA. [19]

34. The circumstances in which a DSIR can be requested are outlined in the Regulations as follows: [20]

(a) the preliminary site investigation report indicates that site contamination is present, or is likely to be present, at the site of the proposed development; and

(b) the relevant authority considers that there is insufficient information to determine that the site is suitable for its intended use, having regard to—

(i) site contamination; and

(ii) if remediation is required, the extent of that remediation; and

(c) the application is not required to be referred to the Environment Protection Authority under item 9A or 9AB of the table in Schedule 9 clause 3.

35. A DSIR must be prepared by a site contamination consultant or a site contamination auditor [21] as those terms are defined in the Environment Protection Act 1993. [22] The report must be conducted in accordance with the National Environment Protection (Assessment of Site Contamination) Measure and other relevant EPA guidelines. [23]

36. Further to a DSIR, a relevant authority can also require the applicant to provide a statement of site suitability that confirms that site has been remediated and is suitable for its intended use before it issues a planning consent.[24] Such a requirement is also imposed under section 119(3)(d) of the PDI Act. Alternatively, the relevant authority may grant planning consent prior to remediation, in which case Step 4 applies.

Step 4

Imposition of mandatory conditions where remediation is required

37. If the relevant authority is satisfied that a site is suitable for its intended use subject to remediation being carried out, it may issue a planning consent prior to remediation work having been carried out provided the consent is made subject to mandatory conditions. The purpose of the conditions is to ensure that remediation is undertaken to a satisfactory standard prior to use, occupation or certification of the development.

38. Part 6 of the Practice Direction contains mandatory conditions that must be attached to approvals for planning consent in cases where remediation is required to be undertaken after the issue of the approval.

39. These conditions are reproduced in Appendix 2.

40. Condition A relates to situations where a certificate of occupancy (CoO) is required. Condition B relates to situations involving building work where a CoO is not required. Condition C relates to applications which do not involve building work. There is also a fourth condition that relates to the issue of a land division certificate under s 138 of the PDI Act.[25] In each case, either the relevant certificate must not be issued, or the land must not be used or occupied, as the case may be until a statement of site suitability is issued to confirm that the site has been remediated and the land is suitable for the proposed use.

41. The mandatory conditions are mirrored in new Regulations 89(2)(c), 103(3a) and 103(3b) which impose similar requirements to provide a statement of site suitability where specific conditions have not been imposed on the planning consent.

Step 5

Confirmation of site suitability

Statement of Site Suitability Form (SOSSF)

42. Unless remediation work has already been completed, the final step in the process occurs after the grant of planning consent, and involves confirmation that the relevant remediation work as identified during the planning process has been undertaken and the land is suitable for the proposed use.

43. Relevantly, a SOSSF must be issued as required by mandatory conditions or the Regulations as the case may be,[26] that is to say, prior to the issue of a certificate of occupancy or a land division certificate, or prior to use or occupation of the relevant land or building where a certification of occupancy is not required or building work is not involved.

44. In all cases, a SOSSF must be in the required form which is found in Schedule 3 of the Practice Direction. It must be completed by a site contamination consultant or site contamination auditor.

45. The SOSSF must certify that the required remediation has been undertaken and the land is suitable for the proposed use.

46. If a SOSSF is given on a conditional basis as may be the case (e.g. on condition that contaminated groundwater not be accessed, or that a subterranean barrier is not disturbed), it is not entirely clear how such conditions may be enforced on an ongoing basis.

Summary and take home messages

47. After many attempts over many years, finally the EPA has achieved integration of a more prescriptive site contamination assessment process within the planning system.

48. Having said this, the timing is clearly unfortunate given the overwhelming amount of other new information that must be assimilated at this time.

49. Be that as it may, it is clearly important that planning and building practitioners, assessment managers, relevant authorities, compliance officers and land division engineers become familiar with the five step process summarised above.

50. The first step of identifying changes of land use to a more sensitive use, and land division proposing a sensitive use, is obviously a critical one which should be carefully considered prior to verification of an application.

Refer to Part 6 of the Practice Direction.

Where a certificate of occupancy is required

A certificate of occupancy must not be granted in relation to a building on the relevant site until a statement of site suitability is issued certifying that the required remediation has been undertaken and the land is suitable for the proposed use.

Where a certificate of occupancy is not required

A person must not occupy the building for the purpose authorised under the development approval [insert development application number] until a statement of site suitability is issued certifying that the required remediation has been undertaken and the land is suitable for the proposed use.

Where the application does not involve building work

A person must not use the relevant site for the purpose authorised under the development approval [insert development application number] until a statement of site suitability is issued certifying that the required remediation has been undertaken and the land is suitable for the proposed use.

Where a land division certificate is required

A land division certificate under section 138 of the Planning, Development and Infrastructure Act 2016 must not be issued until a statement of site suitability is issued certifying that the required remediation has been undertaken and the land is suitable for the proposed use.

1. Amending the Planning, Development and Infrastructure (General) Regulations 2017. For convenience, the term ‘Regulations’ will be used as shorthand for the PDI (General) Regulations in their amended form.
2. Regulations, Schedule 8, clause 2A
3. Regulations, Schedule 9, clause 3, table, items 9A and 9AB
4. Regulations 32A and 32B
5. Practice Direction, clauses 12 and 13
6. Regulations 89(2)(c), 103(3a) and 103(3b) and Practice Direction, clause 10
7. I.e. issue of a certificate of occupancy or a land division certificate.
8. Regulations Sch 8 Cl 2A(1).
9. Practice Direction Cl 5(1).
10. Practice Direction Cl 5(5)(b).
11. Practice Direction Cl 5(5)(a).
12. Regulations Sch 8 Cl 2A(1)(b).
13. Regulations, clause 3(1). Note a similar definition is contained in Practice Direction Cl 4.
14. Practice Direction Cl 6.
15. Regulations Sch 8 Cl 2A(2).
16. Regulations Sch 8 Cl 2A(3).
17. Practice Direction Sch 2.
18. Regulations Sch 9 Cl 3 Part A Item 9AB.
19. Regulations r 32A(1).
20. Regulations r 32A(1).
21. Regulations r 32A(2).
22. Regulations r 3.
23. Regulations 32A(3).
24. Regulation 32B.
25. Formerly known as a section 51 certificate.
26. Regulations 89, 103(3a).