In Queensland, the contaminated land industry faces a significant challenge. Despite the State Government’s requirement for the assessment of contaminated land before a change in land use, this requirement is rarely triggered. The reason? A broken link between planning regulation and contaminated land regulation.
The Regulatory Landscape
The Queensland Environmental Protection Act 1994 (EP Act) provides the framework for the assessment of contaminated land in Queensland. This framework is intended to ensure that any potential contamination is identified and managed appropriately, protecting both the environment and public health.
However, in practice, this framework is rarely required. The reason lies in the disconnect between planning regulation, which governs land use changes, and the contaminated land regulation under the EP Act.
The Broken Link
The planning regulation and the contaminated land regulation are intended to work hand in hand. When a land use change is proposed, the planning regulation should trigger the contaminated land assessment process under the EP Act. However, this link is often incomplete.
According to the Planning Regulation 2017, a material change of use of premises is assessable development if all or part of the premises are on the contaminated land register; or the environmental management register; and the premises are not being used for a sensitive land use; and the material change of use involves a sensitive land use; or a commercial use involving an accessible underground facility.
Despite this provision, the requirement for assessment of contaminated land before a development application for a Material Change of Use (MCU) for development assessable under a planning scheme can be made to a local government is often not triggered because the conditions listed above that make development assessable development are not often met. For example, any commercial use of contaminated land that does not involve an underground basement does not require assessment, regardless of the contamination state of the land, risk to land users or the environment, all of which are unknown if assessment is not carried out.
The Impact
The consequences of this regulatory disconnect are far-reaching. Without proper assessments, contaminated land can be repurposed for uses that may expose the public or the environment to harmful contaminants. This oversight can lead to significant clean-up costs down the line and potential public health issues.
Additionally, the absence of a mechanism to initiate regulatory oversight results in the infrequent monitoring and enforcement of regulatory standards, leading to a gradual deterioration in the quality of assessments. Market dynamics ensure that land developers will cut costs wherever feasible. Without a legal mandate to perform comprehensive evaluations of potential contamination, they might opt to forego such assessments to reduce expenses.
Currently, the majority of contaminated land assessments in Queensland are voluntary and are not subject to any form of regulatory oversight. The government depends on the general environmental duty of individuals to prevent environmental harm.
The Way Forward
What can be done to address the broken link between planning regulation and contaminated land regulation in Queensland?
Strengthen the link between planning regulation and contaminated land regulation through legislative changes. This will ensure that the contaminated land assessment requirement is triggered reliably whenever a land use change is proposed.
This responsibility lies with the Queensland Government. Currently the responsibility is handballed between departments, with the department responsible for regulating the use of contaminated land in Queensland stating it is the responsibility of the department who regulates changes in land use to tell them when they need to do their job, but not providing functional criteria for referal. Meanwhile, they are left wondering why they don’t see many contaminated land assessments relating to changes in land use. Conveniently, this means few Government resources are required to be dedicated to this task.
Advocate for thorough and consistent contaminated land assessments, even when they’re not explicitly required by planning regulation.
Ensure that the link between planning regulation and contaminated land regulation is effectively enforced. Currently, local governments often miss the cue, or misinterpret the requirements due to their complexity. Clear regulation and enforcement will help ensure that all necessary assessments are conducted before any change in land use, thereby protecting both the environment and public health.
By taking these actions, the regulatory disconnect can be addressed, ensuring that contaminated land is managed appropriately, protecting both the environment and public health in Queensland.
Christian Atkinson is a contaminated land auditor and a suitably qualified person for contaminated land assessment in Queensland with more than 28 years of experience. Any discussion is general and does not consider your specific circumstances. If you are considering acting on any matters discussed, you should seek advice from qualified and experienced professionals.
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