1 Background
Homes NSW owns and manages a large property portfolio, some of which may be affected by land contamination. Land contamination has the potential to pose health, environmental, reputational, financial or statutory risk to Homes NSW.
The sources of contamination on Homes NSW land can range from historical industrial activities such as the storage and use of bulk chemicals and fuels, uncontrolled land filling or reclamation, industrial activities conducted on adjoining sites, demolition of structures containing asbestos, rubbish dumping and illegal activities such as clandestine drug laboratories.
Homes NSW may become aware of potential contamination through redevelopment projects, tenant and contractor notifications, notifications by adjoining land holders, notifications from the NSW Environment Protection Authority (EPA) or local councils and routine inspections of properties.
2 Scope
This policy applies to all properties owned and managed by Homes NSW, including properties that Homes NSW leases, buys, sells and redevelops. This policy addresses the identification of actual and potential contaminated land and the management of human health, environmental and commercial risks that may be attributed to that contamination.
Homes NSW adopts the following definition of contaminated land:
“Contamination of land means the presence in, on or under the land of a substance at a concentration above the concentration at which the substance is normally present in, on or under (respectively) land in the same locality, being a presence that presents a risk of harm to human health or any other aspect of the environment” (CLM Act 1997).
3 Policy Statement
Homes NSW has adopted a risk management approach to identify activities or conditions that may result in actual or potential contamination.
The objectives of Homes NSW’s Contaminated Land Management Policy are to:
- Provide places to live and work that are safe by ensuring that land contamination does not harm human health or the environment.
- Ensure that activities conducted by Homes NSW and its contractors, tenants and lessees do not increase the risk to human health or the environment.
- Provide information to tenants, contractors, lessees and other stakeholders about potential and actual contamination risks and how conditions associated with contamination should be managed.
- Ensure that potential and actual contamination is appropriately assessed and managed when leasing, buying, selling or redeveloping land.
- Meet statutory requirements for notification of contaminated land and ensure that Homes NSW exercises its obligations and responsibilities relating to potentially contaminated land with a reasonable standard of care and diligence.
4 Legislation and Compliance
The Contaminated Land Management Act 1997 (CLM Act) allocates responsibility for contamination firstly to the person who caused the contamination, followed by the person who is the owner or occupier of the land.
The CLM Act imposes a duty to report contamination (where contamination is significant enough to warrant regulation) to the NSW Environment Protection Authority (EPA). The duty applies to those who caused contamination and the current owner of the site and is triggered when a person ‘ought reasonably to have been aware’ of the contamination.
The EPA also administers the NSW site auditor scheme under Part 4 of the CLM Act, makes or approves guidelines for use in the assessment and remediation of contaminated sites, and administers the public record of regulated sites under the CLM Act.
Contaminated sites that are not regulated by the EPA are managed by local councils through the land use planning framework.
Requirements to manage contamination also exist under other pieces of legislation, including:
- The Protection of the Environment Operations Act 1997 (POEO Act) - which makes it an offence to pollute land; to dispose of waste in a manner that harms or is likely to harm the environment; and to dispose of waste at a location that cannot be used as a waste facility.
- The Protection of the Environment Operations (Waste) Regulation 2014 (Waste Regulation) – which provides the waste regulatory framework, promotes waste recovery and in particular provides offences for the inappropriate disposal of wastes, which may cause contamination on Homes NSW land.
- The Protection of the Environment Operations (Underground Petroleum Storage Systems) Regulation 2014 (UPSS Regulation) – which provides statutory requirements for the management of UPSS infrastructure, including requirements for Environmental Protection Plans, monitoring, decommissioning, abandonment, removal and validation of UPSS systems.
- State Environmental Planning Policy 55 – Remediation of Land (SEPP55) under the Environmental Planning and Assessment Act 1979 (EP&A Act), which imposes statutory obligations on planning authorities (including local Councils) to consider whether land is contaminated when assessing rezoning and development applications.
- The Work Health and Safety Act 2011 – which requires a person conducting a business or undertaking to ensure a safe work environment for employees, and establishes strict requirements for the assessment and management of asbestos.
- The Competition and Consumer Act 2010 – which requires that corporations not make false or misleading representations concerning land (typically in property transactions), including the characteristics of the land or the use which it is capable of being put.