An advisory committee was appointed by the Minister for Planning to assess the existing planning parameters around contaminated land and to provide recommendations on how these could be altered to be more efficient and effective.

The committee report was released on 9 March 2012, together with a State Government response to the recommendations including an indication of the likely timing for these changes to come into place.

The key changes that we can expect to see in the short term, according to the Government response, include the following.

Firstly, the environmental audit overlay (EAO) will be amended to allow, without a planning permit.

  • buildings and works that do not involve the excavation of soil;
  • buildings more than 3 metres above natural ground level;
  • works required by an approved ‘site management plan’ or environmental audit;
  • works required to contain contamination or to make the site safe.

These exemptions should provide more flexibility in specific cases and less red tape for works to remediate onsite contamination.

Secondly, Ministerial Direction No.1 – Potentially Contaminated Land (the Ministerial Direction)

Ministerial Direction No 1 – Potentially Contaminated Land extract

will be amended to make it clear to Councils that in the absence of some form of assessment about the extent of any contamination, it is not appropriate to apply the EAO.

This change to the Ministerial Direction is intended to prevent application of an EAO over sites without having some understanding of their history.  While this has acted as an insurance policy for Councils, it has placed unnecessary costs on the developer if their land has not had a history of use that suggests potential for contamination.

In addition, the Department will amend the Potentially Contaminated Land General Practice Note (the Practice Note)

Practice note extract

to advise planning authorities to undertake a precinct wide assessment, to determine sites that should be applied with an EAO, before rezoning industrial precincts to facilitate urban renewal or redevelopment.

Furthermore, DPCD will amend the Direction and the Practice Note to clarify that it is not expected that audits be carried out before notice of a planning scheme amendment, if it can be addressed at a later stage through a condition on a planning permit.  The wording at present is unclear and can be interpreted to require an environmental audit to be carried out with these costs being ‘lost’ should the planning scheme amendment not be approved.

These are just some of the more significant proposals.  You should review the full report and Government response at: http://www.dpcd.vic.gov.au/planning/panelsandcommittees/recent-panels-and-advisory-committees/contaminated-land-advisory-committee

Enquiries to Michael Collie (mjsc@colliepl.com.au)