Check land contamination and suitability before rezoning to allow new uses.
When a planning proposal applies to land that may be contaminated, the planning authority must not zone the land to permit a changed use unless it has considered whether the land is contaminated and is satisfied it is (or will be, after remediation) suitable for all permitted uses in that zone. If remediation is needed, the authority must be satisfied it will happen before the land is used for that purpose. The authority must obtain and consider a preliminary investigation report prepared under the contaminated land planning guidelines.
Direction 4.4 requires that whenever a planning authority (usually a council) prepares a planning proposal to rezone or change what can be built on land, and that land might be contaminated, the authority must actively think about contamination before locking in the new zone. The concern is that rezoning land — for example from industrial to residential — can allow sensitive new uses (homes, schools, childcare, hospitals) on ground that carries a legacy of pollution from past activities, posing a risk to health and the environment.
Mechanically, the authority cannot include the land in a zone that would permit a change of use unless it has (a) considered whether the land is contaminated, (b) satisfied itself the land is suitable in its contaminated state or will be suitable after remediation for every purpose the new zone allows, and (c) where remediation is needed, satisfied itself the land will actually be remediated before it is used for that purpose. To be confident on point (c), the authority may need to write specific provisions into the local environmental plan.
On top of that consideration, the authority must obtain and have regard to a preliminary investigation report of the land, prepared in accordance with the contaminated land planning guidelines, before including the land in the zone. If these steps are skipped or the outcome is inconsistent, the planning proposal risks not proceeding without justification.
Planning proposal authorities — in practice councils (as the relevant planning authority) preparing planning proposals to amend a local environmental plan, and any other body preparing such proposals.
When a planning proposal authority prepares a planning proposal applying to land that is in an investigation area under the Contaminated Land Management Act 1997; land on which a use listed in Table 1 to the contaminated land planning guidelines is being or is known to have been carried out; or, where residential, educational, recreational, childcare or hospital development is proposed, land where knowledge of past Table 1 uses is absent or incomplete and such use would have been lawful.
The direction is anchored to the Contaminated Land Management Act 1997 (definition of investigation area) and to the contaminated land planning guidelines, which are guidelines under clause 3 of Schedule 6 to the Environmental Planning and Assessment Act 1979 (and their Table 1 of past/present uses). It replaces the previous Direction 2.6 from 1 March 2022.
Before including land to which the direction applies in a zone that would permit a change of use, the authority must have considered whether the land is contaminated.
If the land is contaminated, the authority must be satisfied it is suitable in its contaminated state, or will be suitable after remediation, for all purposes for which land in that zone may be used.
If remediation is needed to make the land suitable for any permitted purpose, the authority must be satisfied it will be remediated before the land is used for that purpose, which may require specific provisions in the LEP.
Before including the land in the zone, the authority must obtain and have regard to a report specifying the findings of a preliminary investigation carried out in accordance with the contaminated land planning guidelines.
Highly relevant to Kiama. Coastal and town-centre rezonings under housing pressure often involve former industrial, agricultural, quarrying, service-station or dairying sites, all typical Table 1 uses. Any Kiama planning proposal that would rezone such land to allow residential, educational, recreational, childcare or hospital use must include a preliminary contamination investigation and satisfy the council that the land is or will be made suitable — potentially with LEP provisions requiring remediation before occupation.
4.4 Remediation of Contaminated Land Objective The objective of this direction is to reduce the risk of harm to human health and the environment by ensuring that contamination and remediation are considered by planning proposal authorities. Application This direction applies when a planning proposal authority prepares a planning proposal that applies to: (a) land that is within an investigation area within the meaning of the Contaminated Land Management Act 1997, (b) land on which development for a purpose referred to in Table 1 to the contaminated land planning guidelines is being, or is known to have been, carried out, (c) the extent to which it is proposed to carry out development on it for residential, educational, recreational or childcare purposes, or for the purposes of a hospital – land: i. in relation to which there is no knowledge (or incomplete knowledge) as to whether development for a purpose referred to in Table 1 to the contaminated land planning guidelines has been carried out, and ii. on which it would have been lawful to carry out such development during any period in respect of which there is no knowledge (or incomplete knowledge). Direction 4.4 (1) A planning proposal authority must not include in a particular zone (within the meaning of the local environmental plan) any land to which this direction applies if the inclusion of the land in that zone would permit a change of use of the land, unless: (a) the planning proposal authority has considered whether the land is contaminated, and (b) if the land is contaminated, the planning proposal authority is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for all the purposes for which land in the zone concerned is permitted to be used, and (c) if the land requires remediation to be made suitable for any purpose for which land in that zone is permitted to be used, the planning proposal authority is satisfied that the land will be so remediated before the land is used for that purpose. In order to satisfy itself as to paragraph 1(c), the planning proposal authority may need to include certain provisions in the local environmental plan. (2) Before including any land to which this direction applies in a particular zone, the planning proposal authority is to obtain and have regard to a report specifying the findings of a preliminary investigation of the land carried out in accordance with the contaminated land planning gu idelines. Note: In this direction, contaminated land planning guidelines means guidelines under clause 3 of Schedule 6 to the EP&A Act. Issued to commence 1 March 2022 (replaces previous Direction 2.6)
Reproduced from the NSW Department of Planning, Housing and Infrastructure (planning.nsw.gov.au), © State of New South Wales, under Creative Commons Attribution 4.0. Text extraction may introduce minor formatting artefacts — rely on the for anything decision-critical.
This is an unofficial reproduction provided for convenience. It is not the official version of the legislation. For the official, in-force version, see legislation.nsw.gov.au.