Role of planning authorities

Report recommendation a

Items under section 59(2)(a)–(e) of the Contaminated Land Management Act 1997 (CLM Act) are prescribed matters for the purposes of the Environmental Planning and Assessment Act 1979 (EP&A Act) and must be included on section 10.7(2) EP&A Act planning certificates. Councils should make every effort to complete this when producing planning certificates as it is a legislative requirement. When sites are not regulated by the EPA and section 59(2)(a)–(e) is not applicable, councils should still list each of the matters and clearly indicate that the item does not apply to the site.

Feedback from councils
Many councils confirmed that they meet section 59(2)(a)-(e) requirements. Some suggested that the requirements of the Act be incorporated into the list of prescribed items under schedule 2 of the Environmental Planning & Assessment (EP&A) Regulation 2021, rather than being referenced as a note under clause 290 of the EP&A Regulation 2021.

Our response
The CLM Act is distinct from the EP&A Regulation, so the regulation could become out of date when the Act is updated.

No Councils reported they were unaware of the section 59(2) items of the Act or were unaware that they must be specified in a planning certificate. We are not proposing to undertake further action in response to this item.

Report recommendation b

Councils should check our Record of Notices register when creating planning certificates, to confirm the status of a site. If a council is unsure of a site’s regulatory status (or if a Notice or Order does not match council records), then it should contact us.

Feedback from councils 1

• Some councils only check the Record of Notices where we have notified Council about a site.
• Councils found it too onerous to check the Record of Notices and stated it is up to the EPA to notify them when a notice is added to the register
• Council officers are not always aware of whether we are notifying them when a record is added to the register
• Adding information from manual searches would interfere with automated planning certificate processes that rely on notices provided by us.

Our response
A review of our correspondence shows that

• we comply with the requirements of section 59(1) of the CLM Act to notify councils about notices
• notifications are generally sent to Council’s General Manager

As it appears that council officers are not always aware of notifications that have been provided by us to Council, they should check the Record of Notices register when creating planning certificates, to ensure that they have the most up-to-date site status.

Feedback from councils 2
Some councils commented that

• the “EPA’s Record of Notices register only lists what has been notified under section 11 of the CLM Act”
• the Record does not include the information that councils need for complying
• the EPA website is not user friendly and that information should be provided in a format easy to transfer to planning certificates

Our response
Notifications made under section 60 of the CLM Act are published on the  List of Notified Sites not the Record of Notices. The List of Notified Sites is a database of land that has been reported to the EPA as being potentially contaminated. The Record of Notices is a searchable database of orders, notices, site audit statements and other documents made or provided to us for sites which we have declared as ‘significantly contaminated’ under the CLM Act. We recommend that councils familiarise themselves with the two databases and the different functions of each.

We will review the Record of Notices to investigate if it can provide information in a more easily transferrable format.

Feedback from councils 3
An email subscription service for council officers of changes to contaminated sites in their Local Government Area (LGA) was suggested. Feedback included that the Record of Notices contains insufficient information about a site and sometimes has incorrect LGA information, and that the  List of Notified Sites does not provide the full address of a site or Lot/DP details.

Our response
The  Record of Notices can be searched or filtered by LGA, and includes the site address and Lot/DP details. We are not considering a subscription service for individual LGAs. We will consider reviewing LGA information on the Record of Notices register for accuracy.

We will investigate whether the List of Notified Sites can be updated to enable searching by LGA and if the information can be expanded.

Report recommendation c

Councils should consider providing as much guidance as possible to help people search for any potential contamination information pertaining to a site. Where practicable, guidance similar to that provided [under recommendation c in the report] should be included as a minimum.

Feedback from councils
Several councils stated that they can’t provide all contaminated land information about a site, as the information is held by multiple agencies. It was suggested that the EPA and Department of Planning and Environment (DPE), in consultation with councils, develop standardised guidance to help people search for potential contamination information relating to a site, including all relevant government agencies and authorised information vendors. It was also suggested that the state government could develop a central repository for land contamination information (as recommended by the Taylor and Cosenza review).

Our response
We will investigate whether access to contaminated land information for a given site can be made more easily accessible to councils and the general public.

We recommend that councils use the example provided under recommendation c of the report (PDF 4888KB).

Report recommendation d

Where available, councils should consider including site information relevant under section 10.7(5) of the EP&A Act, such as potentially contaminating activities, council site investigations, notifications of remediation and council-held audit statements.

Feedback from councils 1
Some councils provide additional contamination information to the public in forms not prescribed by legislation, including phone calls, but usually only in response to enquiries after a planning certificate has been issued. Most councils only provide the information required by legislation as they have limited resources. The lack of prescribed information that should be provided on 10.7(5) planning certificates results in inconsistent certificates throughout NSW. It was suggested that we prescribe the information to be included on the section 10.7(5) planning certificate, including any notices issued under the Protection of the Environment Operations Act 1997 (POEO Act) and the format of the information required. It was also suggested that we provide a template for a section 10.7(5) certificate.

Our response
Section 10.7(5) is deliberately broad about the information councils should provide to ensure that the wide variety of issues are captured. Mandating a list of advice to be included, or creating a template certificate, would likely cause some relevant contamination information advice to be excluded from a section 10.7(5) planning certificate.

Feedback from councils 2
The 10.7(5) part of the planning certificate is often provided separately to the 10.7(2) part of the planning certificate, at an additional cost. This often results in applicants not receiving all relevant site information and councils having to issue the planning information twice, with an additional cost and time burden. Councils also report cancellation of property purchases for sites where only the section 10.7(2) planning certificate was obtained as per minimum legislative requirements, and further information was unknowingly available on a section 10.7(5) certificate. It was suggested that we work with DPE to merge section 10.7(2) and section 10.7(5) planning certificates into one planning certificate.

Our response
We recommend that councils include a prominent statement on all section 10.7(2) certificates that the certificate may not include all available contamination information for the site, and that a section 10.7(5) certificate may provide further information.

Feedback from councils 3
Some councils noted that the illegal dumping of asbestos waste may be exacerbated by the lack of information about asbestos contamination on planning certificates. It was suggested that planning certificates include a section to indicate the presence of asbestos in soils in addition to the loose fill asbestos requirements.

Our response
We note that information about asbestos in soils would be suitable for addition to a section 10.7(5) certificate, and recommend that councils publicise the availability of a section 10.7(5) certificate on all section 10.7(2) certificates.

Report recommendation e

Where practicable, councils should provide copies of reports, statements and further information about the site under section 10.7(5) of the EP&A Act with the planning certificate when it is issued. This will provide transparency and reduce the risk of a contaminated land notation being overlooked.

Feedback from councils
Some councils stated that this information is provided upon request. Several councils stated that it is not appropriate for a Planning Certificate to contain copies of all contamination reports, and that the fee charged for a planning certificate does not cover the incurred cost to the council of researching and providing this additional information. It was suggested that the EPA, in consultation with councils, determine a suitable method to inform the existence of additional information and how to obtain this information upon request.

Our response
Councils could consider as a minimum including a note on section 10.7(2) certificates, advising that additional contamination information may be available on a section 10.7(5) certificate, and that information such as site investigations, notifications of remediation and council-held audit statements may be available via a request under the Government Information (Public Access) Act 2009 (GIPA Act). Councils should use their judgment as to when it is appropriate to provide reports, statements and further information about the site under a section 10.7(5) certificate, and when it is appropriate to request a GIPA application instead.

Report recommendation f

When potentially contaminating activities are known to council, they should be included on the planning certificate.

Feedback from councils
Some councils already proactively provide this information, but other councils stated that they have received legal advice that providing too much information on planning certificates is a privacy and commercial in confidence risk, and therefore information is often kept as succinct as possible. It was suggested that the EPA and DPE, in consultation with councils, develop stronger and clearer guidelines on what councils must legally provide on planning certificates. For example, develop a Practice Note for Planning Certificates.

Our response
Councils should use their judgment to determine the appropriate balance between transparency and legal risk, based on individual circumstances. We are not currently considering developing a practice note, as Section 3 of the report (PDF 4888KB) provides examples of how to clearly and accurately present contaminated-land information on a planning certificate. See also DPE’s Planning Circular on contaminated land planning certificates.

Report recommendation g

Where practicable, councils should clearly state if there is a site audit statement available for a site.

Feedback from councils
Many councils already provide this information, as it is a requirement under section 59(2)(e) of the CLM Act. It was noted that due to poor historical record keeping, knowledge losses from council amalgamations, older files being destroyed and not all files being digitised, councils may not have copies of Site Audit Statements for any given property. It was suggested that we create a register of all Site Audit Statements that we have on file.

Our response
We acknowledge that it may be difficult for councils to determine if a site audit statement exists for land where previous knowledge or files have been lost.

Section 53B(3)(b) of the CLM Act states that a copy of a Site Audit Statement for a statutory site audit must be provided to both “the EPA and the local authority for the area in which any land the subject of the site audit is situated.” We maintain copies of all statutory site audit statements we have received on the Record of Notices. There is no requirement for non-statutory site audit statements to be provided to us, and we generally don’’t hold copies of non-statutory site audit statements. However, some auditors may still provide copies of non-statutory audit statements to Councils. Under section 59(2)e of the CLM Act Council is required to note on the section 10.7 certificate copies of any site audit statement it receives, whether they are statutory or non-statutory.

Report recommendation h

Where practicable, councils should provide adequate context when using the suggested Remediation of Land SEPP guideline text around contaminated land policy that restricts development.

Feedback from councils
Some councils provided context by referring readers to their contaminated land policy.

Our response
Noted.

Report recommendation i

Councils should consider developing a contaminated land policy or guidelines where practicable.

Feedback from councils 1
Many councils already have contaminated-land policy or guidelines. Some councils stated that there is a “disconnect” between their planning certificates and their contaminated land policy, and have committed to addressing any identified issues to aid consistency.

Our response
Noted and appreciated.

Feedback from councils 2
Development of a contaminated land policy is a priority program for participants of the Council Regional Capacity Building (CRCB) program, which has developed a model contaminated land policy. It was suggested that the CRCB program be expanded to provide additional assistance and funding to councils to help develop contaminated land policies and systems.

Our response
We will consider the role of the CRCB program in providing additional support to regional councils.

Report recommendation j

Where financially and logistically possible, councils should consider maintaining their own databases of contaminated land, for better oversight of contaminated sites within their local government areas.

Feedback from councils
Some councils have established a contaminated land register, but most councils don’t have the resources to develop and maintain contaminated land databases, and it is not a legislative requirement. If it became a requirement it should include state Government funding. It was suggested that the EPA and DPE collaborate with councils to develop, maintain and resource relevant contaminated land information systems, including Contaminated Land Registers, Portals, Spatial information systems and automation of contaminated land information on section 10 certificates.

Our response
We acknowledge that creating a contaminated land register can be costly and time-consuming, and may not be feasible for all councils. We recommend that at a minimum council officers check the Record of Notices and the List of Notified Sites when preparing planning certificates. The List of Notified Sites is updated monthly and contains all sites that have been brought to our attention as potentially contaminated.

We are developing a spatial viewer database of contaminated land information for use by the public and council officers. Councils will be notified when the viewer is available for use.

Report recommendation k

Planning certificates should clarify the appropriate entity to direct enquiries to.

Feedback from councils
Most councils don’t have the resources to note the appropriate regulatory authority (ARA) on planning certificates.

Our response
We acknowledge that determining the ARA for a site may require research to be undertaken by council officers. We suggest that the wording provided in section 2.2.4.k of the report (PDF 4888KB) is adopted where practicable.

Report recommendation l

Planning certificates should correctly name the NSW Environment Protection Authority, to enable members of the public to identify it easily and ensure integrity of the document.

Feedback from councils
Most councils committed to ensuring that the EPA is correctly named.

Our response
Noted and appreciated.

Report recommendation m

Councils should edit planning certificates before publication to make them easy to understand, help avoid misinterpretation and maintain document integrity.

Feedback from councils
Several councils committed to undertaking an audit of their planning certificate templates to help address this issue.

Our response
Noted and appreciated.

Other comments

Feedback from councils 1
Several councils stated that the fee charged for planning certificates does not cover the incurred cost to councils of researching and providing this information.

Our response
The legislated cost of planning certificates are determined by DPE. We recommend that councils contact DPE directly to discuss.

Feedback from councils 2
It was stated that when we issue clean up notices and orders under the CLM Act or POEO Act Council is not directly notified. It was suggested that we formally notify council of any notices issued under the POEO Act for sites in that LGA.

Our response
In the majority of instances, if a notice is required to be issued for a site for which Council is the ARA, we will forward the matter to Council for further regulatory action. If we are required to issue a notice in relation to a site for which Council is the ARA, as a courtesy we will generally notify the local council, generally via a previously designated council contact.

Notices, enforceable undertakings, convictions and civil proceedings issued in relation to sites for which we are the ARA are publicly available on the  POEO Public Registers. We recommend that council officers check the POEO Public Registers when creating planning certificates, to ensure that they have the most up-to-date site status.