Contaminated land amendments - 21 November 2017

On 6 October 2017, the Planning Regulation 2017 (Planning Regulation) was amended to address an issue that had arisen regarding contaminated land.

Previously, a prohibition in the Planning Regulation was in place so that a development application for a material change of use (MCU) could not be made unless the contamination had been remediated, and the contaminated land register updated to include a site suitability statement for the premises. The unintended consequence was that developers were faced with the prospect of carrying out expensive remediation work without any indication as to whether or not the site would ultimately be approved for development.

The Planning Regulation has now been amended so that an application can be made for a MCU on contaminated land (i.e. it has become “assessable development” rather than “prohibited development”). However, the mechanism is still quite cumbersome as it will require two different applications for the development, both of which are needed before the use can commence:

  • an application to the Council as assessment manager, assessed against the planning scheme; and
  • an application to the Chief Executive, Department of Infrastructure, Local Government and Planning as assessment manager, assessed against a new assessment benchmark which is simply, “whether the contaminated land register (CLR) or the environmental management register (EMR) states that the premises are suitable for the proposed use in accordance with a site suitability statement for the premises.”

To avoid the second application to the Chief Executive, an applicant would first have to successfully apply to amend the CLR or the EMR to reflect the suitability of the premises for the proposed site. Once the CLR or EMR has been amended (or the land is removed from the register), the use becomes accepted development and a separate application to the Chief Executive is no longer required.

The upshot of the amendments is that although a site suitability statement will still have to be prepared, the process can now track along with a development application. The blanket prohibition preventing MCU applications over contaminated land has been removed and, importantly, expensive remediation work can occur after an application has been approved.

For more information or discussion, please contact HopgoodGanim Lawyers' Planning and Development team. 

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