Court imposes consent condition requiring management of PFAS

The New South Wales Land and Environment Court has granted a development consent subject to conditions requiring PFAS-contaminated material be removed and impacted land remediated.

The PFAS-contaminated material had been placed for soil improvement and was discovered during a site view for the proceedings.

Snapshot

• The case illustrates how remediation and clean-up obligations can be triggered or brought to light through the development application process.
• The decision also confirms that “adaptive management”, which provides for ongoing monitoring and investigation in light of uncertainty around the status of contamination, is an accepted principle of land remediation.

The developer had appealed a deemed refusal of its development application for subdivision. As part of the Class 1 proceedings, the Court and the parties participated in a site visit, during which the Court observed a low bund made of “grey friable material”.

The Court requested that further inquiries be made about the bund.

Following further investigations, the parties discovered that the bund was made of a paper product from a local paper mill, which had been applied to the land as a soil conditioner. A  fire retardant containing PFAS had been applied to the paper. It is unknown when or by whom the material was placed on the land.

The Developer prepared a Remedial Action Plan (RAP) requiring visible paper material to be removed from the site and retained in a licensed facility off-site and impacted soils to be placed in a containment cell on-site.

The Council expressed concerns that the RAP (which contemplated further sampling and testing) was “conceptual” and did not provide sufficient certainty that the land would be remediated.

Acting Commissioner Adam noted that:

“The outcome of the planning process contains inherent uncertainties. If consent is granted, there is no obligation on the Applicant to take action on it. If there is no commencement within the period specified in the consent, the consent will lapse, but the Applicant (or any subsequent owner of the consent – the consent runs with the title) may choose not to commence without being required to give reasons.”

The Court noted that RAP was an “adaptive management regime”, which acknowledged uncertainties in the remediation process and provided for appropriate ongoing monitoring and testing to manage unknowns.

The concept of adaptive management has been endorsed by the Court on a number of occasions (see Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Limited (2010) 210 LGERA 126; [2010] NSWLEC 48 and Upper Mooki Landcare Inc v Shenhua Watermark Coal Pty Ltd (2016) 216 LGERA 40; [2016] NSWLEC 6).

The conditions of consent required the site to be remediated in accordance with the RAP.

Key takeaways

The case provides a number of useful insights into dealing with contaminated land (in particular where PFAS-contaminated material is present):

• Contamination issues can be brought to light through the development application process, and even when the matter is before the Court in a merits appeal.
• That process may trigger clean-up requirements, by the Court imposing  conditions of consent requiring remediation (as in this instance), or via the regulatory processes under the Protection of the Environment Operations Act 1997 (NSW) or Contaminated Land Management Act 1997 (NSW).
• A range of persons can be responsible for contamination and remediation, including the person who caused the contamination, owners and occupiers. In this case, the obligation to conduct the remediation was imposed on the developer under the planning regime.
• “Adaptive management”, which provides for ongoing monitoring and investigation in light of uncertainties, is an accepted principle of land remediation which can be imposed via appropriate conditions of consent.
• The facts of the case serve as a useful reminder that if PFAS-containing material is to be beneficially re-used (for instance, in compost or as a soil conditioner), the PFAS National Environmental Management Plan 2.0 (2018) recommends that contact be made with the relevant environmental regulator prior to use.

Next steps

The decision (Allen Price & Scarratts Pty Ltd v Shoalhaven City Council [2021] NSWLEC 1362) and conditions of consent can be viewed here.

By Peter Briggs, Partner and Brigitte Rheinberger, Solicitor.