Changes to storage of dangerous substances and development on contaminated land in the ACT

On 29 March 2019, amendments under the Planning and Development Amendment Act 2017 commenced with the balance to commence on a day to be fixed by the Minister by written notice. The key amendments relate to:

• a new planning assessment framework for the storage of dangerous substances;
• development on contaminated land; and
• referral of draft variations to the Territory Plan to the relevant Assembly committee.

Dangerous substances

Currently, in the ACT the planning approval process only applies to on-site works or changes to a lease and the storage of dangerous substances can occur on a site without triggering the need for a planning assessment and approval. This would occur where the construction of a warehouse has been approved and it simply transitions from the storage of a benign substance or material to the storage of dangerous substances.

Therefore, there is no mechanism for notifying the planning and land authority that storage of dangerous substances has commenced on that site and no assessment is undertaken to identify any impacts that may result from that storage.

The Planning and Development Amendment Act 2017 inserts a planning assessment framework into the Planning and Development Act 2007 for the storage of dangerous substances. It is understood that this is in response to the recommendations by the independent review of the 2011 Mitchell chemical fire.

The amendments will require that a proposal which involves the storage of the placard quantity^[1]of a dangerous substance^[2] on land, or in a building or structure on the land, that, immediately before the commencement day, was not registered in the placard quantity register^[3] will require a development approval, assessable in the impact track and be subject to an Environmental Impact Statement (EIS), unless the planning and land authority produces an environmental significance opinion to say the proposal is not likely to have a significant adverse environmental impact.

The new framework will commence on a day to be fixed by the Minister by written notice.

Development on contaminated land

Previously, the impact assessment track automatically applied to a development proposal involving land on the register of contaminated sites under the Environment Protection Act 1997 and an EIS was to be prepared, irrespective of the proposal’s potential impact or whether it even involved development on the contaminated part of the land. This requirement was therefore, often disproportionate where a proposal involved only minor development on that land.

Amendments which commenced on 29 March 2018 will now allow a proponent of a proposal to undertake development on contaminated land to apply for an environmental significance opinion from the planning and land authority. If the authority provides an environmental significance opinion that the proposal will not have an adverse environmental impact, the proposal will be removed from the impact assessment track and an EIS will not be required.

Territory plan variations

Amendments which commenced on 29 March 2018 require that all draft variations to the Territory Plan (draft plan variations) which have been provided by the planning and land authority to the Minister for approval must, within 5 working days after the day the public availability notice for the draft plan variation is notified, be referred by the Minister to an appropriate committee of the Legislative Assembly, together with a request that the committee decide whether it will prepare a report on the draft plan variation.

Previously, it was at the Minister's discretion as to whether a draft plan variation was referred to the appropriate committee 20 working days after the day the Minister received the draft plan variation. However this did not prevent the committee's ability to consider the draft plan variation documents if the draft plan variation was otherwise referred to the committee.

Further, at the time the Minister refers the draft plan variation to the committee, the Minister may now request that, if the committee decides to prepare a report, the report be completed and given to the Minister within a period stated by the Minister, that is not less than three months and not more than six months after the day the draft plan variation is referred to the committee.

The appropriate committee must then tell the Minister, within 20 working days after the day the draft plan variation is referred to the committee, whether or not it will prepare a report on the draft plan variation. If the committee has not told the Minister, within 20 working days, whether it will prepare a report, the committee is taken to have decided not to prepare a report.

Next steps

The Minister will need to fix a day for commencement by written notice for the provisions relating to the storage of dangerous substances.

If you would like any further information about the amendments to the Planning and Development Act 2007 please contact us. 

^[1]The placard quantity being the quantity for a particular substance specified in the Dangerous Substances (General) Regulation 2004.^{Back to article}

^[2]A dangerous substance includes substances classified as an explosive,  asbestos, a security sensitive substance, or s substance prescribed by regulation to be a dangerous substance, or declared by the Minister to be a dangerous substance (see the Dangerous Substances Act 2004)^{Back to article}

^[3]The register lists those premises required to be registered because they contain at least a certain quantity of dangerous substances (known as the placard quantity under the Dangerous Substances (General) Regulation 2004).^{Back to article}

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