The Court's clarification that earthworks such as "mounding and capping" constitutes "treatment" may mean that more development proposals will now be characterised as designated development.

In a development appeal in November 2012, the NSW Land and Environment Court determined that earthworks such as "mounding" and "capping" amounts to "treatment" of contaminated soil. Consequently, more rigorous environmental assessment of the development was required as it was properly categorised as "designated development".

This decision of Justice Sheahan in Toner Design Pty Ltd v Newcastle City Council [2012] NSWLEC 248 will have implications for developers and landowners undertaking projects on land where capping of contaminated materials to allow natural attenuation is an appropriate remediation method.

The development

Toner Design Pty Ltd submitted a development application (DA) to Newcastle City Council in respect of a seniors residential development on land at Wallsend, near Newcastle. The land had been assessed as being extensively contaminated. The DA proposed to:

  • remediate a portion of the site to a standard suitable for residential use;
  • use another portion of the site for the containment of contaminated soils excavated from the site in two capped mounds of contaminated material;
  • refill the excavated area with clean fill; and
  • erect a Seniors Living Development.

Toner classified the development as "building or structure", "demolition" and "earthworks". The Council refused the DA on various grounds including unsuitability due to contamination. Toner appealed the Council's determination.

Part of the appeal turned on the question of whether or not the development was properly classified as "designated development" as "contaminated soil treatment works" under Part 1 of Schedule 3 of the Environmental Planning and Assessment Regulation 2000 (EP&A Regulation).

Contaminated soil treatment works: Triggers for designated development

Part 1 Schedule 3 of the EP&A Regulation prescribes a number of categories of development as "designated development". This includes "contaminated soil treatment works". Certain numerical thresholds have to be met for contaminated soil treatment works to be designated development. Those thresholds include (as set out in clause 15):

"Contaminated soil treatment works…

(c) that treat contaminated soil originating exclusively from the site on which the development is located and:

(i) incinerate more than 1,000 cubic metres per year of contaminated soil, or

(ii) treat otherwise than by incineration and store more than 30,000 cubic metres of contaminated soil, or

(iii) disturb more than an aggregate area of 3 hectares of contaminated soil."

The question for the Court was whether Toner proposed to "treat" and "store" more than 30,000m3 of contaminated soil or disturb more than an aggregate area of 3ha of contaminated soil.

The proposed earthworks

Toner proposed:

  • to excavate 27,480m3 of contaminated soil from a total area of 2.93ha;
  • to prepare a different part of the site (called the "fill zones"), which also contains contaminated soil, by clearing vegetation and levelling the area;
  • to "mound" and "compact" the excavated contaminated soil in the fill zones on top of the existing contaminated soil in that area and the "cap" the mounds with a layer of clean fill. The Statement of Environmental Effects described the mounds as "compacted and vegetated mounds that are graded to increase the ratio of run-off to infiltration";
  • the area of the mounds would be 1.47ha; and
  • the volume of the contaminated soil under the mounds that originates within the fill zones would be at least 14,700m3.

To meet the thresholds for designated development, both the excavated soils and the contaminated soils in the fill zones would need to be considered to be "treated".

Mounding, compacting, capping and shaping amounts to "treatment"

The Court found that:

"The creation of the mounds is a "storage" measure but the compaction of the materials, and their "capping", and their "shaping" to ensure "free drainage", amount to "treatment", and… their establishment on top of existing contamination amounts to a "treatment" of that material as well, as it adds to the safety of humans and the environment."

Consequently, more than 30,000m3 of contaminated soil was proposed to be "treated" and the development was properly characterised as designated development.

Implications for developers and landowners

The Court's clarification that earthworks such as "mounding and capping" constitutes "treatment" may mean that more development proposals (which previously fell under the thresholds) will now be characterised as designated development.

Designated development is subject to more rigorous environmental assessment. Proponents are required to prepare an Environmental Impact Statement which is placed on public exhibition along with the DA. Third parties have an opportunity to make submissions on the DA over a period of at least 30 days. The result can be that the approval process takes longer and it is more likely that environmental conditions will be imposed in any development consent.

In addition, the decision in Toner Design v Newcastle City Council may have licensing implications under the Protection of the Environment Operations Act 1997 which uses a very similar trigger for "contaminated soil treatment" adding to the regulatory burden for developers and landowners.