Granting development consent on contaminated land

In Lippmann Partnership Pty Ltd v Canterbury-Bankstown Council, the Land and Environment Court reiterated that the extent of contamination on a site must be determined before a consent authority has the power to issue a development consent.

The law

Clause 7 of the State Environmental Planning Policy 55 – Remediation of Land (SEPP 55)  sets out two preconditions that must be satisfied before a consent authority (such as a council) has the power to grant development consent.

Precondition 1:  if contamination is or may be present – the consent authority must consider a report that details the findings of a preliminary investigation of the contamination on the land. The report must be carried out in accordance with the contaminated land planning guidelines. 

Precondition 2: The consent authority must:

a) consider whether the land is contaminated;

b) be satisfied that the land is suitable in its contaminated state, or will be suitable after remediation, for the purposes of the proposed development; and 

c) if the land requires remediation, be satisfied that the land will be remediated before the land is used for the proposed development.

The contaminated land planning guidelines (guidelines) provide additional details about what must be done when conducting investigations on contaminated land.

Importantly:

  • The guidelines refer to a preliminary investigation as a Stage 1 preliminary investigation”, while a detailed investigation is referred to as Stage 2 detailed investigation” (the Stage 1/Stage 2 terminology is commonly used by consultants);
  • where contaminating activities are suspected of having an impact on the land, sampling and analysis are required as part of a Stage 1 preliminary investigation to confirm and support any conclusions;
  • one of the purposes of a Stage 1 preliminary investigation is to provide a basis for determining whether a Stage 2 detailed investigation should be undertaken;
  • Under SEPP 55, the consent authority may require the applicant to carry out, and provide a report on, a Stage 2 detailed investigation if it considers that the findings of the Stage 1 preliminary investigation warrant it.

Lippmann’s development application

Lippmann Partnership Pty Ltd (Lippmann) lodged a development application for a mixed use development. The site had previously been used as a service station in the 1960’s, which indicated that contamination was or may be present on the site. Lippmann’s development application involved a change of use on the site, and so clause 7 of SEPP 55 was engaged.

With the development application, Lippmann provided a report on that detailed the findings of a Stage 1 preliminary investigation of contamination on the site (Stage 1 Report).

The Stage 1 Report made the following findings:

  • It is unclear from the information available whether the former underground storage tanks have been removed from the site, remain on the site but have been decommissioned, or remain on the site and have yet to be decommissioned.
  • It will be necessary to assess in detail the locations of the former/current tanks and
    other related items, their decommissioned status and any residual impacts that the
    tanks may have had on the site. This should form part of a Detailed Site Investigation which is recommended for this site based on its previous and current land use.
  • The results of the further assessment will be able to be used to confirm that the site is either suitable for the proposed development or can be made suitable following the adoption of an appropriate remediation strategy, where required.
  • It is noted that the proposed development will involve excavation to depths in the order of 6m over the majority of the site. As such, the development will effectively remediate much of the site by removing any existing tanks and infrastructure as well as much of the adjacent soil/rock that could potentially be impacted by hydrocarbons.
  • It is recommended that a Detailed Site Investigation be undertaken following DA approval when the scheme has received in principle approval.

The Stage 1 Report generally found that contaminating activities were suspected of having an impact on the site. The conclusions reached in the Stage 1 Report were not confirmed or supported by sampling and analysis in accordance with the guidelines. Instead, the Stage 1 Report recommended that a Stage 2 detailed site investigation be completed.

Lippmann accepted that further investigation was required. Lippmann wanted further investigations to be conditioned as part of the development consent.

The application was deemed to have been refused by Canterbury Bankstown Council, and so Lippmann lodged an appeal with the Land and Environment Court.

(For more information on deemed refusals, click here)

The issue 

The Land and Environment Court considered whether Lippmann had provided enough information to allow the Court to reach the level of satisfaction required under clause 7 of SEPP 55.

If Lippmann had provided enough information, the Court had the power to grant development consent before the additional investigations were completed.

Findings of the Land and Environment Court

The Court found that the Stage 1 Report did not:

  • confirm the extent of the historic use of the site as a service station;
  • locate the presence of contamination on the site; or
  • support a conclusion as to the extent of the contamination.

As a result, the Stage 1 Report did not provide sufficient certainty. Specifically, the Court could not be satisfied that the land was suitable in its contaminated state, or would be suitable after remediation, for the purposes of the proposed development.

Clause 7 of SEPP 55 sets out requirements that must be satisfied before consent can be granted. The Court found that Precondition 2 failed. Since the requirements of clause 7 of SEPP 55 were not satisfied, there was no power to grant consent for the proposed development.

When consent is capable of being granted, it can be granted with conditions. Since there was no power to grant consent, this meant that the additional information required by the Court could not be conditioned. The Court reiterated that deferred commencement conditions cannot be used to defer considerations that must be taken into account before a consent can be issued in the first place.

The Court directed the applicant to conduct a Stage 2 detailed investigation as recommended in the Stage 1 Report. The Stage 2 detailed investigation had to be completed before the application could be determined.

Key points to take away from this case

  • When SEPP 55 applies to a site, the requirements of clause 7 of SEPP 55 must be satisfied before a consent authority has the power to issue a development consent.
  • Contamination investigations should be undertaken in accordance with the contaminated land planning guidelines. If a Stage 1 preliminary investigation provides certainty with respect to the extent and location of contamination on the site, it may be possible to avoid a Stage 2 detailed investigation before a development consent is issued.
  • The power to issue a development consent must be activated before a development consent can be issued. This means that, in some instances, a consent authority must get both a Stage 1 preliminary investigation and a Stage 2 detailed investigation as part of a development application.
  • If a consent authority does not have the power to issue a development consent, it cannot proceed to issue a development consent with conditions that require the information at a later date.

 

 

 

Posted by

Alyce is a civil engineer and a practicing lawyer, who has a desire to share her insights on the legal and practical realities of the development industry.

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