Changes to QLD Contaminated Land Assessment Requirements

 CLM picture news article

Diagram 1: Risks of improperly managing contaminated land

A Consultation Regulatory Impact Statement (RIS) has been prepared to assess the costs and benefits of options for facilitating the provision of technical expertise in contaminated land matters to inform regulatory decision making under the Environmental Protection Act 1994 (EP Act). This is a key priority and essential to effectively and appropriately manage the significant risks that contaminated land can pose to public health and the environment.

Site contamination is recognised as a major environmental issue for Australia. In addition to posing a potential threat to public health and the environment, contamination can have significant economic, planning and legal implications for the affected site. Contamination may limit land use potential or increase costs for developers, government and the community.

There are currently 22,000 actual and potentially contaminated sites across the state listed on one of Queensland’s two contaminated land registers. Between February 2013 and February 2014, 930 sites were notified for listing on the environmental management register (EMR) and over the same period 300 sites were removed from either the EMR or the contaminated land register (CLR).

While the majority of sites listed on the EMR and CLR do not require immediate remediation or management, the risks to human health and the environment are more likely to change when a new use, particularly development, is proposed for that land. Specialised technical contaminated land expertise ensures that contaminated or potentially contaminated land is suitably managed or remediated so that new land uses can be conducted in a way that is safe for human health and the environment.

Consistent with the government’s contestability and renewal agendas, the Department of Environment and Heritage (the department) is considering the best way of ensuring technical contaminated land expertise is available, i.e. either by government or by third parties, and how that expertise is paid for, so that the risks (Diagram 1: Risks of contaminated land) to human health and the environment are managed.

One of the options put forward in this RIS for consideration is as follows:

Amend the EP Act to mandate that contaminated land reports are certified by approved auditors and introduce compliance assessment under the Sustainable Planning Regulation

Mandating that contaminated land reports be certified by an auditor approved under the EP Act, before being submitted to the department, would apply to all contaminated land reports regardless of the legislative trigger and process through which they were initiated (i.e. proponent initiated under the EP Act or, development approval via SPA). Amending the SP Reg to change the type of assessment for development applications on contaminated lands from code assessable (SDAP) to development requiring compliance assessment is proposed to occur in parallel with the EP Act reforms.

This option creates a new obligation for stakeholders who require a contaminated land report to engage an approved auditor2 to certify the report and prepare a site suitability statement. Engaging an approved auditor is in addition to engaging a SQP who will still be required to fulfil the roles and functions as conduct desktop and sampling plans, determine remediation works, and prepare contaminated land reports.

The role of the approved auditor is to independently review assessment, remediation and validation reports to ensure the technical components of the report are accurate and correct and any risks to the environment or public health from the contaminated site are being appropriately managed. In certifying reports the auditor will make decisions about the status and extent of contamination for a site, risks to environment and human health and land use activities suited to the site.

On the basis of the certified contaminated land report and any risks to human health and the environment, an approved auditor will also be responsible for making decisions about land use suitability, and determining whether the site should be listed or removed from the EMR or CLR. Consistent with the regulatory decision making responsibilities of approved auditors, a high level of performance accountability is expected.

A proponent can choose at which stage of the project to hire an approved auditor. By simultaneously engaging the services of a SQP and approved auditor, greater engagement between the two could be facilitated providing the proponent with greater certainty that the right outcomes will be achieved. This is likely to save developers time and money compared to the current situation where to support regulatory decision making, the department requests additional information for an average of 40% of contaminated land reports submitted for assessment. Information requests extend assessment and approval timeframes.

Sustainable Planning Act

Clarifying the scope of the assessment triggers and changing the type of development assessment

In a planning context, the primary risk associated with contaminated land is where a change in the use of land could result in people, particularly the elderly, young and infirm, being exposed to hazards where they live, are educated, shop, play or receive health care.

In parallel with this option, two amendments to Schedule 3 have now been ratified as of July 4th 2014 of the SP Reg to improve efficiencies for industry, government and the community. The first amendment simplifies and clarifies the triggers for when development is assessable for contaminated land. The reconfiguration of a lot (ROL) trigger has been deleted and the material change of use (MCU) trigger simplified so that only changes to a more sensitive use, which therefore potentially change the level of risk, will be captured. By clarifying when the contaminated land trigger should apply, it will more efficiently target high risk applications and reduce the number of unnecessary applications referred for State assessment.

The second amendment changes the category of development that applies for contaminated land from development requiring code assessment to development requiring compliance assessment. Compliance assessment is similar to self-assessable development, with the exception of the requirement for auditor certification that the development meets the required standard with the certification provided to government to demonstrate compliance.

The summary of these effects of this option being approved means;

  • All assessments will require the engagement of an auditor to review the scope of the proposal the investigation and reporting for approval before submission to DEHP;
  • This additional cost will be the responsibility of the client and is independent of the SQP s proposal and scope;
  • If the use of the land is not being changed to a more sensitive use there will be no requirement for an assessment unless the site has been identified with some contamination impact above relevant thresholds;
  • Investigations will have a shortened timeframe for approval; and
  • Financial institutions may still require an independent investigation for their own financial risk assessment.