The Advisory Committee on Potentially Contaminated Land (PCL), appointed by the Minister for Planning, recently released its Issues and Options Paper (paper) for public comment.

The Advisory Committee's terms of reference require a review of the relevant Victorian planning and environmental policy provisions for PCL, including Ministerial Direction No 1, the Practice Note and any relevant Victorian Civil and Administrative Tribunal (VCAT) decisions and panel reports relating to those planning controls and to consider potential changes to the planning framework for PCL.

The Advisory Committee's terms of reference are limited to consideration of potential reforms to the planning framework relating to PCL and will not solve many of the problems that have been identified in other reviews and inquiries (such as the Ombudsman's inquiry into Brookland Greens, the Victorian Auditor General's Office (VAGO) audit of Environment Protection Authority (EPA) Hazardous Waste Management, the EPA Enforcement and Compliance Review and current VAGO audit into contaminated land management in Victoria).

The Advisory Committee comments in the paper that 'there is no denying that there are problems in the current system for managing contaminated land in Victoria. Some people we spoke to think that these problems run so deep that a written branch review of the system is required'. It may be that this more detailed review and reform will follow the work of the Advisory Committee and the current VAGO audit. Given the significant differences in the approaches to contaminated land legislation in other jurisdictions, it is also noteworthy that the national harmonisation of environmental law has been put on the Council of Australian Governments (COAG) agenda (although need for reform in Victoria is more urgent than the likely timeframe for these national developments).

The paper identifies a number of questions in relation to options identified by the Advisory Committee and seeks feedback on those questions. 18 questions are listed in the paper, dealing with the following issues:

  • the responsibility and mechanism for systematically identifying PCL
  • the introduction of flexibility into the Environmental Audit Overlay (EAO) to allow certain building and works to be exempted and an audit to be waived in particular circumstances
  • improved guidance on when an audit is required and what are the alternatives to an audit (including, for example, the use of a site remediation strategy plan)
  • allowing construction during remediation works prior to a certificate or statement of environmental audit being obtained and whether remediation works should be allowed by way of a separate planning permit or as part of the permit for development
  • the notification and enforcement of conditions on a statement of environmental audit (including the use of permit conditions or a section 173 agreement)
  • the terminology used in the planning framework in relation to identifying potentially contaminating land uses and sensitive uses.

The Advisory Committee has also drafted a revised EAO (included in the paper) and seeks comment on whether that EAO will provide a workable solution. The revised EAO includes:

  • schedules and different requirements relating to sites with known contamination and those with suspected contamination
  • permit requirements for sensitive uses and buildings and works
  • exemptions from permit requirements for certain works
  • alternatives to an audit
  • standards for a site history, phase one environmental site assessment and site remediation plan.

There are a number of practical and technical issues with this proposal that need further consideration.

DLA Piper has extensive experience advising and acting for clients in relation to PCL in Victoria including local and state government, land owners and developers. We were also involved in the early consultation conducted by the Advisory Committee.

If you would like to discuss the questions raised by the paper separately or require advice or assistance in preparing a submission to the Advisory Committee, please contact Mark Beaufoy.

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