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The purpose of Ministerial Direction No. 1 (PDF) (MD No. 1) is to ensure that potentially contaminated land is suitable for a use which is proposed to be allowed under an amendment to a planning scheme and which could be significantly affected by any contamination.

When MD No. 1 applies

This Direction applies to potentially contaminated land where a use is proposed which could be significantly adversely affected by any contamination. Such uses include, residential, public open space, agriculture, a child-care centre, pre-school centre or a primary school (but not a secondary school).

For the purpose of this Direction, ‘potentially contaminated land’ means land that is, or has been, used for:

  • industry
  • mining; or
  • storing chemicals, gas, wastes or liquid fuel (if not ancillary to another use of the land).

Land that is, or has been, used for farming or a petrol station is also typically considered to be potentially contaminated as such industries involve the storage of chemicals, gas, wastes or liquid fuels.

The Direction requires that, for planning scheme amendments that would allow potentially contaminated land to be used for a sensitive use, agriculture or public open space, a planning authority must satisfy itself that the environmental conditions of that land are or will be suitable for that use.

There are two ways a planning authority can do this.

Option 1

Before a notice or copy of the amendment is given under Section 17, 18 or 19 of the Planning and Environment Act 1987 (P&E Act), a planning authority must ensure that:

  • a certificate of environmental audit must be issued for the land in accordance with Part IXD of the Environment Protection Act 1970 (the Act), or
  • if the amendment allows a sensitive use only in accordance with plans included or referred to in the amendment an environmental auditor appointed under the Environment Protection Act 1970 has made a statement in accordance with Part IXD of the Act that the environmental conditions are suitable for the sensitive use in accordance with those plans.

Option 2

A planning authority must include in the amendment a requirement to the effect that before a sensitive use commences or before the construction or carrying out of buildings or works in association with a sensitive use commences:

  • a certificate of environmental audit must be issued for the land in accordance with Part IXD of the Act, or
  • an environmental auditor appointed under the Act must make a statement in accordance with Part IXD of the Act that the environmental conditions of that land are suitable for the sensitive use.

This is usually accompanied by the application of an Environmental Audit Overlay (EAO) to the subject land. In some instances, an exemption from the need to comply with this Direction in relation to a particular amendment may be granted. The Minister or Executive Director (Planning, Heritage and Building Division) must consult EPA before deciding to grant such an exemption.

EPA’s involvement

Once we receive a planning scheme amendment, we will review whether the planning authority has addressed the requirements of Ministerial Direction No. 1. If an amendment proposes rezoning potentially contaminated land to a zone where sensitive uses may be allowed, the requirements of Ministerial Direction No. 1 are triggered and must be addressed.

Prior to the exhibition of a planning scheme amendment, EPA can support the planning authority in making the decision that they are satisfied. However, it is the responsibility of the planning authority to ensure that they are satisfied the land is suitable for its intended use.

What EPA needs to see in an amendment to be satisfied

Information that will help us provide informed advice includes:

  • a history of previous and current uses of the subject site/area (this information can be obtained through the planning/building permit history, rates records, archives from libraries, aerial photos)
  • a history of previous and current uses of the surrounding sites (as above)
  • evidence of the current/previous zone and any overlays/relevant provisions
  • a site layout plan identifying the features of the subject site and surrounding sites
  • any recent investigations, assessments or testing of the subject site
  • any remediation of the subject site and validation of this process and outcome by a suitably qualified environmental professional or environmental auditor*
  • any environmental site assessment reports or audits of nearby sites
  • any known or potential contamination on nearby properties or groundwater
  • council records for the site
  • evidence that the land is remediated and suitable for the proposed use
  • evidence that the land can be remediated to a level that would make it suitable for the proposed use.

The Explanatory Statement for MD No. 1 (PDF) and Planning Practice Note 30 (PDF) provides further guidance for planners and applicants on the planning requirements for potentially contaminated land.

For more information about the Victorian planning system, see www.planning.vic.gov.au

Planning guidance

EPA's role in the planning system

Ministerial Direction 19

Strategic planning

Statutory planning

Key planning guidance and EPA guidelines

Land and groundwater - advice for planning authorities

Guidance on works approvals and licences

 

This page was copied from EPA's old website. It was last updated on 26 June 2019.

Reviewed 17 September 2020