TERMS OF REFERENCE
ADVISORY COMMITTEE
Advisory Committee appointed pursuant to Part 7, section 151 of
the Planning and Environment Act 1987 to report on planning
controls for potentially contaminated land
Version: 25 February 2011
Name
1.
The Advisory Committee is to be known as the ‘Potentially Contaminated Land
Advisory Committee’.
2.
The Advisory Committee is to have members with the following skills or
experience:

statutory and strategic planning

experience with potentially contaminated land matters

an understanding of the environmental audit process and its relationship
to planning.
Purpose
3.
The purpose of the Advisory Committee is to examine the existing planning
controls and processes for potentially contaminated land and make
recommendations as appropriate to:

update and clarify the planning processes and guidelines pertaining to
planning for potentially contaminated land

amend the planning controls by incorporating greater flexibility to better
reflect the intent of the regulatory environmental audit system

address any other matter that the Advisory Committee considers will
improve outcomes.
More detailed issues for consideration are set out in ‘Outcomes’ (paragraph 27).
Background
4.
As part of the government’s response to Melbourne’s growth challenges, there
will need to be a greater emphasis on urban renewal to accommodate increased
population growth in established areas that are located in and around activity
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centres and close to public transport. This includes making surplus industrial
land available for new housing, commercial and employment opportunities. In
addition, state planning policy in the Victoria Planning Provisions specifically
encourages planning for urban growth to consider opportunities for
redevelopment of existing urban areas and the facilitation of targeted
redevelopment to increase levels of housing close to where people reside.
5.
This policy direction, along with the demand for housing in inner city areas
and increasing property values, will see an increase in the likelihood of
redevelopment proposing sensitive uses on potentially contaminated land. As
a result, potentially contaminated land will continue to challenge planning
authorities and land developers that are redeveloping in and around former
manufacturing and industrial areas.
Furthermore, the expansion of
Melbourne’s metropolitan areas into rural areas introduces the risk of sites that
may be contaminated by agricultural processes requiring appropriate
consideration where redeveloping for a sensitive use.
6.
The way in which the planning system currently deals with potentially
contaminated land was introduced in 1989 in response to the discovery of a
contaminated site on a newly developed residential estate in Ardeer. The
Planning and Environment Act 1987 was amended to include consideration of the
effect the environment may have on a new use and development allowed by a
planning scheme amendment or a planning permit.
7.
At the same time, Ministerial Direction No.1 – Potentially Contaminated Land
(Ministerial Direction No.1) was introduced to ensure planning authorities
satisfy themselves that the environmental conditions of land known to have
been used for industrial operations are suitable for the proposed use and
development. In May 1992, Ministerial Direction No.1 was amended to
incorporate the new statutory environmental audit system developed under the
Environment Protection Act 1970 and expand upon its initial intentions by
defining sensitive uses and attaching an explanatory statement. There have
been no major changes to Ministerial Direction No.1 since this time.
8.
In 2002, the State Environment Protection Policy - Prevention and Management of
Contamination of Land (SEPP) was introduced under the Environment Protection
Act and sought to bring together all matters relating to contamination of land,
including responsibilities for prevention and management of contamination.
The SEPP goes further than Ministerial Direction No.1 by inserting an
obligation for planning and responsible authorities to consider requiring a
certificate or statement of environmental audit when determining a planning
permit application, in addition to a planning scheme amendment.
9.
In 2005, the General Practice Note on Potentially Contaminated Land was
introduced to provide greater guidance on the planning process to deal with
potentially contaminated land and the inclusion of the environmental audit
system. It also introduced a methodology to assess the potential for
contamination by categorising types of activities that are likely to result in
contaminated land. The Practice Note is heavily relied upon by applicants,
responsible and planning authorities and given weight to in VCAT hearings,
particularly when dealing with contamination issues for redevelopment.
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10.
Since the regulatory framework for potentially contaminated land was
developed, numerous issues have been revealed during the day-to-day practice
and implementation of the relevant planning provisions, along with an increase
in the complexity and cost of the environmental audit system. These planning
and development issues have increasingly caused difficulties for local
government and been the focus of Victorian Civil and Administrative Tribunal
(VCAT) cases.
11.
There have been a number of VCAT decisions in recent years that deal directly
with the issue of potentially contaminated land, including a number of ‘Red
Dot’ decisions. These particular decisions highlight issues with the planning
system, which range from questions of interpretation of relevant planning
controls and how they should be applied, to calls for a review or redrafting of
the Environmental Audit Overlay (EAO).
Policy Settings
Planning and Environment Act 1987
12.
The Planning and Environment Act 1987 states:

Section 12(2)(b)
“In preparing a planning scheme or amendment, a planning authority - must
take into account any significant effects which it considers the scheme or
amendment might have on the environment or which it considers the
environment might have on any use or development envisaged in the scheme or
amendment”

Section 60(1)(e)
“Before deciding on an application, the responsible authority must consider - any
significant effects which the responsible authority considers the use or
development may have on the environment or which the responsible authority
considers the environment may have on the use or development”
Ministerial Direction No. 1 – Potentially Contaminated Land
13.
Ministerial Direction No.1 ensures potentially contaminated land is suitable for
a use for which is proposed to be allowed under a planning scheme
amendment. It requires a planning authority to satisfy itself that the
environmental conditions of land are or will be suitable for a proposed
sensitive use (defined as residential, child-care centre, pre-school centre or
primary school), agriculture or public open space.
14.
A planning authority must do this by requiring an environmental audit to be
undertaken and a Certificate or Statement of environmental audit to be issued
in accordance with part IXD of the Environment Protection Act stating that the
environmental conditions of the land are suitable for that use. This must be
undertaken before giving notice of the amendment, or by including the
requirement in the amendment itself.
Victoria Planning Provisions
15.
The Victoria Planning Provisions include:
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
Clause 13.03-1 of ‘Use of contaminated and potentially contaminated
land’:
Objective
To ensure that potentially contaminated land is suitable for its intended future
use and development, and that contaminated land is used safely.
Strategies
Require applicants to provide adequate information on the potential for
contamination to have adverse effects on the future land use, where the subject
land is known to have been used for industry, mining or the storage of chemicals,
gas, wastes or liquid fuel.
Policy guidelines
Planning must consider as relevant:


State Environment Protection Policy (Prevention and Management of
Contamination of Land).

Ministerial Direction No. 1 – Potentially contaminated land.

National Environment Protection (Assessment of Site Contamination)
Measure (National Environment Protection Council, 1999).
Clause 45.03 ‘Environmental Audit Overlay’
The EAO is a statutory mechanism provided in the Victoria Planning
Provisions and planning schemes to defer the requirements of Ministerial
Direction No.1 for an environmental audit until the site is to be developed
for a sensitive use.

Clause 54.01-1 and 55.01-1 (ResCode Provisions)
Includes an application requirement for both single and two or more
dwellings on a lot or residential buildings to accurately describe any
contaminated soils and filled areas, where known in a neighbourhood
and site description.
State Environment Protection Policy
Contamination of Land (2002)
16.
- Prevention and Management of
The SEPP is policy under the Environment Protection Act that brings together
all matters relating to contamination of land, including responsibilities for
prevention and management of contamination. The SEPP confirms the
requirements of Ministerial Direction No.1 and outlines useful actions a
responsible authority should take in the assessment of planning permit
applications.
National Environment Protection (Assessment of Site Contamination) Measure
(1999)
17.
As stated at section 5(1), the purpose of the National Environment Protection
(Assessment of Site Contamination) Measure (NEPM) is to establish a
nationally consistent approach to the assessment of site contamination to
ensure sound environmental management practices by the community which
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includes regulators, site assessors, contaminated land auditors, land owners,
developers and industry.
18.
Part of the NEPM’s policy framework includes a series of principles that should
be observed in relation to the assessment of site contamination, which includes
a principle for

Section 6(5): ‘Planning authorities of participating jurisdictions should
ensure a site, which is being considered for a change in land use, and
which planning authorities ought reasonably to have known to have a
history of use that is indicative of potential contamination, is suitable for
its intended use.’

The NEPM also sets out a detailed site assessment framework through the
provision of detailed supporting guidelines for the assessment of site
contamination.

Victoria has broadly adopted the NEPM approach with some
jurisdictional variations through development of a similar provision in
the SEPP and referencing compliance with aspects of it.
General Planning Practice Note Potentially Contaminated Land (DSE, 2005)
19.
The General Planning Practice Note Potentially Contaminated Land (the
Practice Note) is designed to provide guidance for planners and applicants
about how to identify if land is potentially contaminated, the appropriate level
of assessment of contamination for a planning scheme amendment or planning
permit application, conditions on planning permits and circumstances where
the EAO should be applied and removed.
Method
20.
The Advisory Committee must undertake the review in the following stages:



Phase 1 - Investigation, Issues and Options Paper:

review relevant state planning and environmental policy and
provisions for potentially contaminated land, Ministerial Direction
No.1, the Practice Note and any relevant VCAT decisions and panel
reports relating to the planning controls

consider potential changes to Ministerial Direction No.1, EAO, VPP
requirements and the Practice Note that will improve outcome
performance

develop an Issues and Options Paper for public consultation.
Phase 2 - Call for submissions:

publicly exhibit the Issues and Options Paper for a minimum of 6
weeks

call for submissions.
Phase 3 - Public hearing or meeting (optional):


a public hearing or a series of meetings may be held with stakeholders
who raise concerns or other issues.
Phase 4 - Analysis and preparation of a Final Report:
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21.

prepare a final report that considers the submissions to the Issues and
Options paper and any further consultation

the final report must contain recommendations that may form the
basis for future changes to Ministerial Direction No.1, the EAO and
the Practice Note.
The Advisory Committee should consult with key stakeholders, including:

Environment Protection Authority

Department of Sustainability and Environment

Department of Primary Industries

Municipal Association of Victoria

Victorian Civil and Administrative Tribunal
22.
The primary means of consultation should be via written submissions to the
Issues and Options Paper. The Advisory Committee may hold a public hearing
if it is considered necessary to provide an opportunity for submitters to clarify
information or views relevant to their respective submissions. Alternatively, a
series of meetings may serve the same purpose.
23.
The Advisory Committee may meet and invite others to meet with them when
there is a quorum of at least one of the Committee members.
24.
The Advisory Committee may ask the Minister for Planning to vary these
Terms of Reference if necessary.
Submissions are public documents
25.
The Advisory Committee must retain a library of any written submissions or
other supporting documentation provided to it directly to it until a decision has
been made on its report or five years has passed from the time of its
appointment.
26.
Any written submissions or other supporting documentation provided to the
Advisory Committee must be available for public inspection until the
submission of its report, unless the Advisory Committee specifically directs
that the material is to remain ‘in camera’.
Outcomes
27.
The Advisory Committee must produce a written report for the Minister for
Planning based on the following issues for consideration:
Planning controls applying to potentially contaminated land
How can the Ministerial Direction No 1 – Potentially Contaminated Land be
amended to:
a) have the purpose also apply to planning permit applications? This is to
better reflect the responsible authority’s obligation under the Planning
and Environment Act and to achieve consistency with the SEPP
(Prevention and Management of Contamination of Land)
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b) have the ‘requirement to be met’ apply to potentially contaminated land
that is already zoned to allow for a sensitive use (i.e. residential land
with current industrial uses)?
c) better define when it is ‘difficult or inappropriate’ to require an
environmental audit before notice or copy of the amendment is given
for a planning scheme amendment?
How can the Environmental Audit Overlay (Clause 45.03) be amended to:
d) exempt a limited category of buildings and works from the need to
obtain an audit or statement?
e) allow some works necessary to assess environmental conditions and
carry out remediation of the land to commence prior to the issue of an
audit or statement?
Other:
f) Define what constitutes an acceptable level of construction during the
remediation period, if any.
g) What is the best way to incorporate conditions resulting from a
Statement of Environmental Audit for a planning scheme amendment
where an audit has been undertaken at the time of decision?
h) Can terminology be clarified and retain its consistency with relevant
environmental policy (for example, is there a better term for ‘potentially
contaminated land’)?
i)
Are there any other improvements that can be made to the function of
the planning controls for land that is potentially contaminated?
Planning processes for potentially contaminated land
How can the planning processes and guidelines for potentially contaminated
land be improved to:
j)
clarify the level of consideration required where potentially
contaminated land is being redeveloped for a non-sensitive land use?
k) identify the circumstances that justify a responsible authority’s request
to carry out an audit or site assessment as part of the application or
amendment process, prior to deciding on a permit or authorising a
planning scheme amendment?
l)
provide a detailed methodology for a precinct-based approach to
applying an EAO?
m) update or expand types of land uses and activities that have the
potential to result in land contamination?
Other:
n) Analyse the appropriateness for the inclusion of a permit condition that
‘mirrors’ the EAO requirement and seeks compliance with a Statement
of Environmental Audit (if applicable) for land to which an EAO
applies.
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o) Analyse the appropriateness for an environmental management plan or
a remediation action plan (clean up plan) to deal with actual
contamination issues, rather than requiring an audit for a planning
permit application.
p) Analyse the appropriateness for a site remediation strategy plan to be
requested by a responsible authority during the application process for
planning permits and planning scheme amendments to demonstrate
that the level of contamination will not prevent the proposed use or
development of the site.
q) What other ways can the practice note be improved to remove
ambiguity and provide greater detail and guidance?
Timing
28.
In consideration of the level of work already progressed by the department and
provided to the Advisory Committee, it is expected that the Advisory
Committee will submit the Final Report to the Minister for Planning within six
months from the date of exhibition of the Issues and Options Paper.
Fee
29.
The fee for the Advisory Committee will be set at the current rate for a Panel
appointed under Part 8 of the Planning and Environment Act 1987.
30.
The costs of the Advisory Committee will be met by Statutory Planning
Systems Reform, Department of Planning and Community Development.
Project Manager
31.
Day to day liaison for this matter will be through Stevie Meyer, Planner, of the
Statutory Planning Systems Reform unit of the Department of Planning and
Community Development on ph. 9637 8418 or by email at
stevie.meyer@dpcd.vic.gov.au.
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