Seven Things You Need To Know About Contaminated Land


With further urbanisation and Australia’s reputation as the favoured destination of many offshore developers there is intensified competitiveness for clean infill sites leaving developers to increasingly look closer at contaminated land, and the requisite environmental assessment, for redevelopment.

With this comes a greater reliance on trusted expert consultants because a decision by an environmental consultant may mean substantial cost or benefit to key stakeholders. Jay Parmansche of ARC Environmental gives you the seven things you need to know about contaminated land:

Contaminated Land - Know What You Are Buying
Due Diligence - if there is one way to decrease risk in property transactions, this would be it.

The peak national body CRC Care estimates that there are more than 160,000 contaminated sites in Australia, resulting from industrial activities. You need to know if the site you are purchasing is one of them. The majority of these sites will only be remediated when a property transaction occurs and the cost and time implications need to be considered.

For vendors it is prudent to disclose as much material as possible in the contract about the contamination to avoid the purchaser rescinding the contract or claiming substantial damages, including loss during remediation. For purchasers you need fit-for-purpose environmental due diligence to understand your acquisition.

Could Contaminated Land Derail My Development?
It is far less likely in 2015 than ever, with more certainty for financiers, developers and purchasers of contaminated sites now that all states have adopted the national legislation National Environment Protection (Assessment of Site Contamination) Measure 1999 (amended April 2013) or NEPM. The NEPM has allowed for a scientifically risk-based acceptance criteria for sites across a range of land uses, which often now results in cheaper assessment (and remediation) in faster time, provided your consultant is good.

The assessment and clean-up of sites is most cost efficiently undertaken as an iterative process – the more data you collect, the greater reduction in unknowns. The benefits to costs and time need to be weighed up in the planning of environmental investigations.

Environmental Audits – Are They That Scary?
The simple answer is no. We have all heard the horror stories but adequate due diligence can provide enough information in most cases to enable a developer to understand the likely costs and time implications of an Environmental Audit from the outset.

Environmental Audits are statutory planning requirements placed on land due to the potential for identified past activities to cause contamination and ensures that the land is suitable for the current and/or intended land use.

Generally, Audits require that an accredited Contaminated Land Auditor independently review the assessment and remediation conducted by a consultant to provide a certificate or statement of site suitability. An Environmental Audit can take from a few months to years to be completed based on the characteristics of the contamination, however if initial investigations indicate that the site is not contaminated a good consultant can advocate to have the requirement for an Environmental Audit removed from a property.

What Should a Great Environmental Assessment Look Like?
Get the Phase 1 environmental assessment wrong and all subsequent investigations could be useless. The Phase 1 is a thorough review of publically available information and a site visit, which may include limited sampling, to gain an understanding of past contaminating activities at and surrounding the site, and the potential for risks to the environmental and human health. A Phase 1 is inexpensive, and local, knowledgeable expertise is invaluable.

If the Phase 1 indicates a potential for contamination a Phase 2 intrusive investigation of soil and possibly groundwater may be required. This is where the costs start to ramp up and where the quality of your Phase 1 pays off.

How Significant Are Waste Soils?
$330 per tonne significant. This is the current going rate in Victoria, for instance, for the disposal of Category B contaminated soils. Contaminated soils requiring removal from your development site will impact planning and construction aspects of your development and need to be considered. Disposal is not the only way to deal with waste soils and other methods that could save time and money, as well as valuable landfill space, should be discussed with your contaminated land consultant.

Is There a Duty to Report Contamination?
For certain degrees of land contamination, yes, and it differs for each state or territory – best to discuss with your contaminated land consultant upfront to gain an understanding of when and how you need to report a contaminated site.

What’s the Worst That Could Happen?
You have likely heard of Premier Building and Consulting v Spotless and the Cranbourne methane gas emergency. The effect on a major oversight or poorly executed environmental assessment and remediation program can be toxic to your company’s reputation and you may find the EPA and council looking a lot closer at contaminated land aspects of your development applications, at a minimum.

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