Does remediation work require a construction certificate?

We’ve looked at whether remediation work requires development consent – the next question often asked is whether a construction certificate is required too.

The State Environmental Planning Policy 55 – Remediation of Land (SEPP 55) provides for a state-wide planning approach to the remediation of contaminated land. In particular, SEPP 55 specifies what needs to happen before, during, and after remediation work takes place. You can read about the development process under SEPP 55 here.

So… what about construction certificates?

SEPP 55 does not require that a construction certificate is obtained for remediation work. However, a construction certificate may be required if structures are needed to carry out remediation work. For example, a construction certificate may be required if it is necessary to construct a large retaining wall, or an air ventilation system.

Reasons for this are outlined below.

  • The Environmental Planning and Assessment Act 1979 (EPA Act) requires that the “building work” or “subdivision work” must not commence without a construction certificate. Both of these types of work have particular meaning under the EPA Act (more on that here), and only building work and subdivision work require a construction certificate under the EPA Act. Under SEPP 55, remediation work is not defined as a type of building or subdivision work. Accordingly, remediation is likely to be considered to be a type of “work”, but not a type of work that requires a construction certificate.
  • Further to this, SEPP 55 and it’s associated guidelines do not say that remediation work needs a construction certificate in its own right. Instead, SEPP 55 requires that a person complies with detailed reporting and documentation requirements for remediation work (you can read about that here). Details about the remediation work are provided to the local council before works commence, and also once works conclude.
  • SEPP 55 provides for independent reviews of remediated sites through the preparation of specialised reports like Remedial Action Plans and Site Audit Statements.  These specialised reports are able to provide increased certainty to consent authorities when it comes to remediation of land, in a way that is similar to the use of certifiers and principle certifying authorities under the EPA Act (more on that here).

It may be necessary to build a structure in order to do the remediation work. If this is the case, you may require development consent and a construction certificate.

When an additional structure is required:

  • if you are carrying out Category 1 Remediation Work, your development consent will most likely contain a condition requiring a construction certificate; or
  • if you are carrying out Category 2 Remediation Work, you may need to obtain a development consent for the additional structure.

The take-home message is that a construction certificate may be required for remediation work if physical structures need to be built to carry out remediation work.

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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