'Compliance' is the word for Contaminated Land

20 February, 2015

Recent changes to the Queensland Sustainable Planning Act 2009 (SP Act) and Sustainable Planning Regulation 2009 mean that the rules governing when a contaminated land investigation is required under the SP Act have changed. In addition, an Environmental Auditor (i.e Compliance Assessor) is compulsory for all assessments in those circumstances where an investigation is required.

The amended Sustainable Planning Regulation now classifies development applications on contaminated land as “development requiring compliance assessment”.  As a result, contaminated land is addressed through a Compliance Assessment process and not as part of the DA process.  Our experience is that Councils want to be advised through the DA that the Compliance Assessment is taking place, but will not request information regarding contamination matters.

Compliance Assessment process means that under Schedule 18 of the SP Regulation a Compliance Permit is now required for a Material Change of Use (MCU) where the site is listed on the Environmental Management Register (EMR) or Contaminated Land Register (CLR) and the proposed development involves a MCU to a sensitive purpose (e.g. residential) or to a commercial purpose with an accessible underground facility (e.g. a basement carpark, workshop, or office).

The key elements of the Compliance Assessment process are:

  • A Suitably Qualified Person (SQP) is appointed by the landowner (or development proponent) to undertake contaminated land investigations, remediation and/or validation;
  • A certified Compliance Assessor (i.e. Environmental Auditor under the Environmental Protection Act 1994 (EP Act)) is appointed by the landowner at the commencement of the project;
  • The Compliance Assessor oversees the site assessment and remediation works undertaken by the SQP, and either the removal of the site from the EMR/CLR or preparation of a Site Management Plan;
  • Once the Compliance Assessor is satisfied all contaminated land matters have been addressed, the landowner will submit an IDAS Form 32 request to the Compliance Assessor; and
  • The Compliance Assessor will then issue a Compliance Permit to the landowner, prior to use.

So what does that mean in practice? 

There are three key changes:

  • Landowners looking to develop properties listed on the EMR or CLR should budget for the involvement of a Compliance Assessor/Approved Auditor for most residential developments and commercial developments with basements;
  • The DA process will no longer be delayed by the need to complete contamination investigations before a DA is issued, but contamination works will need to be completed and signed off by the Compliance Assessor before completion of the project; and
  • Some developments on contaminated land (commercial and/or industrial without basements) will be able to proceed without a contamination investigation.

It should be noted that a site can still be removed from the EMR or CLR under the contaminated land provisions of the EP Act.  At present, this process can be completed without the involvement of an Approved Auditor, but changes have been made to the EP Act that will require Auditor overview and approval in the near future.

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