Seven tips for dealing with contaminated land issues

Failure to implement good processes can expose councils to extensive liabilities

Shaw Reynolds Lawyers offers seven tips regarding some key considerations for councils.

One

The Contaminated Land Management Act 1997 NSW (CLMA) defines contamination as ‘the presence in, or under the land of a substance at a concentration at which the substance is normally present in, on or under (respectively) land in the same locality, being a presence that presents a risk of harm to human health or environment impact.’ Council must therefore be mindful that contamination may exist on the surface of land, below the surface or in the ground water associated with the land.

Two

Council shares regulatory responsibility for contamination with the Environmental Protection Agency (EPA). The EPA typically deals with sites posing a significant risk of harm, and Council deals with those sites posing a low level of risk. Council must promptly notify the EPA where it suspects a site in Council’s local government area to pose a significant risk of harm and must work in co-operation with the EPA regarding investigation and any remediation action.

Three

The appropriate managers within Council must be familiar with the content of the statutory provisions, guidelines and planning principles that apply to contamination issues in NSW, and it is prudent for councils to have in place clear, comprehensive policies for their officers regarding identification and investigation of suspected contamination. Such policies facilitate timely and appropriate responses to contamination and may also reduce the likelihood of a successful negligence claim being made against Council in relation to contamination.

Four

For planning decisions made by Council the SEPP 55 – Remediation of Land 1997 requires consideration of the potential for contamination at a site prior to a planning decision being made. In assessing land for contamination, councils are obliged to request information or further verification where the applicant’s information is insufficient.

Five

Under SEPP 55, Council’s consent to rezoning, change of use and development applications must be refused unless the Council is satisfied that there will be no significant risk of harm to human health or the environment in the permitted use or from the permitted development. Applications for change of use of land will usually be accompanied by a site history. If this indicates past/present land uses that may give rise to land contamination, Council should require the applicant to prepare and submit a site contamination report under the provisions of the Site Auditor Scheme in the CLMA.

Six

A failure by Council to properly consider the effects of contamination in respect of its planning functions could expose Council to actions in negligence. Although part 7A of the Environmental Planning & Assessment Act purports to exempt councils from liability for all planning related actions on contaminated land, this is subject to the requirement that the actions are done in good faith. Councils which act “substantially in accordance with the contaminated land planning guidelines” are taken to have acted in good faith.

Seven

Councils may reduce administration costs and limit the risk of claims regarding contaminated sites by ensuring that they have good processes regarding the storage, organisation and disclosure of information regarding contaminated sites in their local government area. Failure to implement good processes can expose Councils to extensive liabilities, such as in the case of Alec Finlayson Pty Ltd v Armidale City Council (1994) 123ALR155 where the Council was ordered to pay $1.5m in damages for negligence by rezoning land to residential use and approving a subdivision of that land without investigation the extent of contamination on that land.

The seven tips were prepared by Caroline Nuttall. The seven tips do not constitute legal advice.

For more information or advice, contact Shaw Reynolds Lawyers on (02) 9271 0300.