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Contaminated Land at Riparian Zone and Watercourses

 

What is a Pollution Incident?

A “pollution incident” is defined by the Protection of the Environment Operations Act 1997 (‘the Act’) as follows:

“Pollution incident means an incident or set of circumstances during or as a consequence of which there is or is likely to be a leak, spill or other escape or deposit of a substance, as a result of which pollution has occurred, is occurring or is likely to occur. It includes an incident or set of circumstances in which a substance has been placed or disposed of on premises, but it does not include an incident or set of circumstances involving only the emission of any noise.”

Why is a Clean-up Notice issued from the Council or from EPA?

(1) Council reasonably believes that a land pollution incident has occurred and is occurring at the subject premises in that the landfill waste material spread on site is contaminated with construction and demolition waste (Bricks, tiles, and Miscellaneous rubbish).

(2) It is alleged the landfill material has been originated from the property itself. This raises further concerns in relation to the extent to which the subject property may be further contaminated.

(3) No development consent or approval has been given by Council for the earthworks or depositing of contaminated landfill waste materials at the subject property. The earthworks and landfilling conducted do not comply with State Environment Planning Policy (Exempt and Complying development Codes) 2008 as the landfill material is not considered to be virgin excavated natural material (VENM).

(4) Deposition of any contaminated landfill waste material at a premises other than a licenced waste facility is classified as a Prohibited Development as per Council’s Local Environmental Plan 2019 (LEP) 2019.

(5) Council is not able to allow the use, storage or sorting of contaminated landfill waste material at the subject premises. The retention of the landfill material in its current location has caused land pollution incidents and may cause further water pollution incidents.

(6) Council has serious concerns for the environmental impacts that contaminated landfill waste materials may impose on the native flora and fauna as well as the potential for the material to make its way into the adjoining creek causing a water pollution incident.

What are Controlled Activities at Riparian Zone and Watercourses?

Controlled activities carried out in, on or under waterfront land are regulated by the Water Management Act 2000 (WM Act). The Department of Planning and Environment administers the WM Act and is required to assess the impact of any proposed controlled activity to ensure that no more than minimal harm will be done to waterfront land as a consequence of carrying out the controlled activity. Waterfront land includes the bed and bank of any river, lake or estuary and all land within 40 metres of the highest bank of the river, lake or estuary. This means that a controlled activity approval must be obtained from the department before commencing the controlled activity.

A riparian corridor (RC) forms a transition zone between the land, also known as the terrestrial environment, and the river or watercourse (aquatic environment). Riparian corridors perform a range of important environmental functions such as:

 

    • providing bed and bank stability and reducing bank and channel erosion

    • protecting water quality by trapping sediment, nutrients and other contaminants

    • providing a diversity of habitats for terrestrial, riparian and aquatic plants (flora) and animals (fauna)

    • providing connectivity between wildlife habitats

    • conveying flood flows and controlling the direction of flood flows

    • providing an interface or buffer between developments and waterways

    • providing passive recreational uses.

The protection, restoration or rehabilitation of vegetated riparian corridors is important for maintaining or improving the shape, stability (or geomorphic form) and ecological functions of a watercourse.

The core riparian zone and vegetated buffer have been combined into a single vegetated riparian zone (VRZ). The department recommends a VRZ width based on watercourse order as classified under the Strahler System of ordering watercourses and using current 1:25 000 topographic maps (see Figure 1 and Table 1). The width of the VRZ should be measured from the top of the highest bank on both sides of the watercourse.

As indicated from the Strahler System, the site has the 1st order watercourse in the west and 3rd order watercourse in the north and east, the VRZ width (each side of watercourse) is 10 meters and 40 meters, respectively (Controlled activities – Guidelines for riparian corridors on waterfront land, Department of Planning and Environment, May 2022).

Applications for controlled activities approvals should be informed by the riparian corridor matrix and prepared by visiting the NSW Planning Portal.

Consequences?

It is an offence pursuant s 91(5) of the Act to fail to comply with this Clean-up Notice unless you have a reasonable excuse for not complying.

(1) Commence civil enforcement proceedings in the Land and Environment Court of NSW pursuant to s 252 of the Act seeking mandatory orders to compel you to comply with the Notice, and any other order necessary and in addition, an order that you pay the Council’s legal costs; and/or

(2) Commence summary criminal proceedings in a Court of competent jurisdiction pursuant to s 215 of the Act seeking a conviction and pecuniary penalty; and/or

(3) Issue a penalty notice for failure to comply with Clean-Up Notice pursuant to s 91(5) of the Act which carries a maximum penalty of $4000 for individuals and $8000 for a corporation.

Free Fill, is it worth it?

The EPA and councils receive regular reports of fill (soil excavated from one site and used as a base material in building, landscaping or general fill somewhere else) being delivered to unsuspecting property owners with promises that it is clean and harmless, only to find that it is contaminated with building and demolition waste, general rubbish, chemicals, heavy metals or even asbestos.

Further information, please refer to:https://www.epa.nsw.gov.au/your-environment/illegal-dumping/prevent-illegal-dumping/accepting-fill

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