Auditing potentially contaminated land when there is no Land

Regular planning permit applicants will be aware that the Environmental Audit Overlay seeks to ensure that potentially contaminated land is suitable for a use which could be significantly adversely affected by any contamination.

It also requires that before a sensitive use (residential use, child-care centre, pre-school centre or primary school) commences or associated buildings and works are carried out that an appropriate environmental assessment is undertaken in accordance with the Environment Protection Act 1970.

The work normally required to be undertaken onsite, as part of such an environmental assessment, includes soil and ground water sampling, laboratory testing and remediation works, in instances where contamination is found.

So, what happens if the subject site is on the 11th storey of an existing office building within Melbourne’s CBD? Is the owner really required to test the soils beneath the building?

This was the question put to the Tribunal in Almia Pty Ltd v Port Phillip CC (Red Dot) [2020] VCAT 613, in which the permit applicant was seeking to convert the existing 11th floor office into a dwelling.

The Environmental Protection Authority (EPA) effectively said ‘yes’, the applicant should be required to undertake a full assessment of the site and that the “site” should include the land beneath the existing building. Council effectively took the position that; if the EPA says yes, then we say yes – because the EPA is the authority here.

Thankfully, the Tribunal took a more sensible and pragmatic stance.

In determining that the relevant parcel of land was only that area within which the sensitive use will be undertaken, in this instance the 11th floor, the Tribunal noted:

  1. … the owner of the land on Level 11 does not own the land on other levels, including the ground or basement levels. Save for limited rights and access over common property, the owner of Level 11 does not have the legal or practical ability, for example, to drill holes through the concrete basement level to enable soil or groundwater contamination to be tested. Nor would this be directly proportionate or responsive to the sensitive use proposed on Level 11. The planning scheme cannot have intended these outcomes. Moreover, as I understand it, the owner of Level 11 could not be made responsible for the clean-up of any contaminated soil or groundwater discovered through the audit, as it is not the relevant owner or occupier of the contaminated land nor the person who caused the contamination.

That’s one for common sense. But you can’t help wonder why it got to the Tribunal in the first place.


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