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Brief Counsel

Dirtiness limits for dirt – new soil contamination standards

26 October 2011

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A new National Environmental Standard for Assessing and Managing Contaminants in Soil to Protect Human Health (NES) will take effect from 1 January 2012.

This Brief Counsel considers the key features of the NES and its implications.

Scope of the new NES

The NES creates a nationally consistent set of planning controls and soil contaminant standards.  In some districts, these controls will be stricter than current territorial authority requirements while, in others, they may be more lenient.

The NES overrides district plan rules and can affect any new notice of requirement for a designation or alteration to designation, application for resource consent or a review of existing resource consent conditions.  It appears from the NES that it is not intended to affect regional plan rules relating to contamination or discharges.

The purpose of the NES is to ensure that land affected by contaminants in soil is appropriately identified, assessed and remediated (if necessary) at the time of development, to make the land safe for human use.

It applies only to land which is, has been or is more likely than not to have been the site of activities on the Hazardous Activities and Industries List (HAIL) maintained by the Ministry for the Environment (MfE).  Under the NES, a person can determine if the NES planning controls apply to land by either:

  • obtaining information from the relevant district council’s dangerous goods file,  property files, resource consent database or other “relevant registers”, or
  • having an environmental consultant conduct a “Phase I” desktop study.

The NES is supported by a risk-based set of standards for 12 priority soil contaminants, as set out in MfE’s Methodology for Deriving Standards for Contaminants in Soil to Protect Human Health document.

The following activities are permitted activities (requiring no resource consent under the NES) subject to certain requirements being met:

  • the removal of underground fuel storage systems, and associated subsurface soil sampling, investigation and land remediation
  • small scale (no more than 25m3 per 500m2) and temporary soil disturbance activities (two months' duration), and soil sampling, and
  • subdivision or change of land use (absent other rules applying via the relevant District Plan1) where a Phase I desktop study states it is highly unlikely that there will be risk to human health if the subdivision/change of use is undertaken (a copy of the Phase I study is to be provided to the relevant district council).

Where a “Phase II” detailed site investigation report finds that the soil contaminant standards within the NES are not exceeded, a subdivision or change of land use is a controlled activity (again, absent other district rules applying), requiring resource consent and giving the council the ability to impose consent conditions. 

Where the Phase II investigation finds NES soil contaminant standards are exceeded, a restricted discretionary resource consent will be required.

Implications

The NES could result in additional investigation, resource consent application and remediation costs where a HAIL activity is, has been or is more likely than not to have been undertaken in the past. 

In some cases, these increased costs could affect the viability of development proposals.

District councils are not currently required to show HAIL sites on a Land Information Memorandum (LIM) or Project Information Memorandum (PIM).  Landowners and developers may therefore prefer to have an environmental consultant conduct a Phase I study of a subject site.

The level of information held by councils and vendors will improve as a result of the NES because, whether or not a resource consent is required by the NES for a proposed subdivision or change of land use, the NES requires copies of Phase I and Phase II reports to be provided to district councils, which will then be held on council files/databases (and available for public review). 

Overall, we consider that the NES may result in contamination issues featuring more prominently in property negotiations, with risk allocation and price adjustments being used in transactions to address any such issues.

Requiring authorities will also need to be careful about assuming that a designation will provide all-encompassing land use authority to proceed with a project as the NES could mean fresh land use consent is required where the designation has not been included in the district plan before the NES comes into force on 1 January 2012.  

Chapman Tripp has expertise in resource management and contaminated land laws in New Zealand, and is happy to help you understand how the NES might impact on your business, development proposal or property transaction.

For more information, please contact the lawyers featured.

Footnotes

  1. Where a resource consent is required under other district plan rules, resource consent will still be required e.g. subdivision always requires at least a controlled activity resource consent from a district council.

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