Does remediation work require development consent?

Whether a development consent is required for remediation work is a question that repeatedly comes up during the development process.

Remediation work includes activities which remove, disperse, destroy, reduce, mitigate or contain contamination. Remediation also includes eliminating or reducing hazards that arise from the contamination of land (such as by preventing people or animals on the land).

The State Environmental Planning Policy 55 – Remediation of Land (SEPP 55) provides for a state-wide planning approach to the remediation of contaminated land.

When a consent authority (like a local council) is making decisions under the Environmental Planning and Assessment Act 1979 (EPA Act), it must consider the law set out in SEPP 55. In particular, the consent authority must consider the possibility that there is contamination on a site, and the possible risks to health and the environment. Decisions must then be made about whether the land should be remediated, or the use of land restricted, in order to control or reduce the risks (you can read more about the decision-making process here).

Importantly, SEPP 55 specifies what needs to happen before, during, and after remediation work takes place – including whether a development consent is required for the remediation works.

Before remediation work can begin

Remediation work may or may not require development consent.

Category 1 Remediation Work requires development consent.

  • Clause 9 of SEPP 55 lists the instances where remediation work would require development consent. For example, development consent is generally required when the proposed remediation work will have a high impact on the environment, or when remediation work is proposed in a sensitive area (like critical habitat, or development in zones like costal protection, heritage conservation, or floodway).
  • If Category 1 Remediation Work is proposed, then a development consent must be obtained before the remediation work can begin.
  • The development consent will set out conditions that have to be satisfied before, during, and after the remediation work takes place (which could include a condition requiring a construction certificate).

Category 2 Remediation Work does not require development consent.

  • Clause 14 of SEPP 55 lists the instances where remediation work does not require consent. For example, development consent is generally not required when the proposed remediation work will have a low impact on the environment, or if remediation work will be carried out under particular government programs.
  • If Category 2 Remediation Work is proposed, a person is generally required to notify the local council of the work at least 30 days before work begins. The Notice of Commencement must:
    • be in writing;
    • provide the name, address and telephone number of the person who is responsible for the advisory notice;
    • provide a description of the proposed remediation work (including details about what work is proposed, how long it will take, and a map of the location); and
    • provide a description of why the person considers that the work is Category 2 Remediation Work.

It is possible that contamination, like asbestos, may be unexpectedly discovered during the construction of a project.  If this happens, it is best to speak to a town planner or the local council in order to determine whether development consent is required. Ideally, it may be possible to avoid the need for development consent if the unexpected find can be remediated as Category 2 Remediation Work.

When remediation work is taking place

Category 1 and Category 2 Remediation Work must comply with:

  • the contaminated land planning guidelines (you can see them here);
  • the guidelines in force under the Contaminated Land Management Act 1997 (you can check those out here); and
  • in the case of Category 1 Remediation Work – the plan of remediation (also known as the Remedial Action Plan or RAP) that was approved by the consent authority.

In addition, Category 1 Remediation Work must comply with any relevant development consent conditions.

After remediation work is complete

For both Category 1 and Category 2 Remediation Work, a Notice of Completion must be given to the local council within 30 days of remediation work being completed.

The Notice of Completion must:

  • be in writing;
  • provide the name, address and telephone number of the person who is responsible for the notice of completion;
  • provide details of the remediation works (including information on the method of remediation used, what guidelines were complied with, and the standard of remediation achieved);
  • if Category 1 Remediation Work – show how the work complied with the conditions of the development consent.

The contaminated land planning guidelines say that a Validation Report by a consultant is an important component of the Notice of Completion. Often, for both Category 1 and Category 2 Remediation Work, the local council will require that a Validation Report is prepared and submitted as part of the Notice of Completion.

In some instances, the local council may also request that a Site Audit Statement is provided with the Notice of Completion. A Site Audit Statement is an independent review of any or all of the remediation work, and can only be completed by an accredited site auditor.

If you are considering what regulatory approvals you require to remediate land, it may be best to speak directly to your local council, liaise with a town planner, or seek legal advice.

If you would like legal advice, you can contact Alyce Kliese directly by clicking here.

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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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