New State Environmental Planning Policy (SEPP) for the Remediation of Land

Key takeaways

As part of a broader review of all SEPPs, the NSW Government has announced that it is reviewing the current SEPP 55 - Remediation of Land and the associated Contaminated Land Planning Guidelines.

The Government has just released an Explanation of Intended Effects for the Remediation of Land SEPP (which is intended to replace SEPP 55) as well as Draft Contaminated Land Planning Guidelines. Feedback on both of these documents is open until 31 March 2018. Submissions can be made by 31 March 2018 at www.planning.nsw.gov.au/landremediation.

Background

The overarching objective and the operational framework (namely requiring consent authorities to consider whether a site is contaminated and then dividing remediation works into those that do and do not require consent) will remain the same. Category 1 remediation works are those that require consent and Category 2 works are those that can be undertaken without consent. Many of the changes to the SEPP focus on increasing transparency and accountability for remediation works that are Category 2 works.    

Key changes

Key proposed changes to the SEPP are as follows:

• Category 1 works – these works will continue to be assessed by the relevant consent authority. However, the new SEPP will include an additional detailed list of works that fall into Category 1 to provide more certainty as to what works require consent.
• Category 2 works – proponents who wish to carry out remediation works without consent will now need to:
  • engage a certified consultant to verify that the remediation works are Category 2 works
  • notify Council before work commences
  • comply with standard operational requirements such as hours of operation and noise and dust control
  • provide council with a notice of completion, including validation form a certified consultant, that remediation works have been satisfactorily completed. 
• Environmental management plans (for post-remediation management or ongoing remediation measures) must be provided to Council
• The new SEPP will not include any strategic planning provisions. The requirements to consider contamination when rezoning land will be transferred to a direction under s117 of the Environmental Planning and Assessment Act 1979. 

Transitional provisions will be included in the new SEPP to ensure that remediation work that is underway or for which notice has been given to the council when the new SEPP commences is not affected. Additionally, any development application that was lodged, but not determined, when the new SEPP commences will be determined as if the SEPP had not commenced.

Key proposed changes to the Guidelines include:

• outlining the preliminary and detailed site investigation processes
• outlining the role of the principal certifying authority when dealing with contaminated land and site audits
• providing guidance on how to address possible contamination of a near-by site. 

The proposed changes to the SEPP and Guidelines are designed to reduce risks associated with remediation, ensure there is consistent regulation and assist in enforcing long-term environmental management plans. The most significant proposed changes are to remediation works which are carried out without consent. These category 2 works will be much more regulated and monitored under the proposed new SEPP and those carrying out remediation works will need to ensure that they have obtained the relevant certifications both pre and post remediation. Persons who carry out any category of remediation works need to be aware of the new environmental management plans which will need to be prepared and factor in some additional costs in preparing these plans. 

The changes to the SEPP and Guidelines will affect all those who carry out remediation works across NSW.  However, the changes will affect those who carry out a high volume of small scale remediation the most.

We will keep you updated as reforms to the SEPP and Guidelines progress.