Potentially contaminated land in the Bay of Plenty

Tuesday August 12, 2014

The following article was published in the Spring 2014 edition of Tauranga & Rotorua Property Investor magazine

Central Government changes to how District Councils assess and monitor potentially contaminated land to protect health mean there will be greater scrutiny of this issue in the Bay of Plenty.  Developers need to be aware of the obligations and how to manage these.

The requirements are set out in the National Environmental Standard for Assessing and Managing Contaminants in Soil to Protect Human Health ("NES Soil" for short).  In effect for more than two years, the requirements are becoming more prominent with economic pick-up. 

The NES Soil applies to set activities – including subdivision, soil disturbance and changes of use – if these take place on a piece of land being used, or which has been used in the past, for a hazardous activity or industry.  Hazardous activities and industries are set out in the "HAIL list" (published by the Ministry for the Environment).  This is not a list of specific sites, but a list of uses (eg. not "Acme Chemicals Ltd, 123 Main Street ", but chemical factories where ever located).

Directly relevant for the Bay of Plenty, the HAIL list includes areas of "persistent pesticide bulk storage or use including… market gardens, orchards [and] glass houses…".  Other entries are things like (to name a select few): motor vehicle workshops, wood treatment sites and landfills, so the NES Soil is potentially relevant for industrial land as well. 

To give some examples, the NES Soil may apply if you are subdividing an orchard.  Or if you want to remove kiwifruit vines to build a new house.  Or if you are opening a day-care centre on a vacant lot, if that was a mechanics in past.   

What happens if you want to develop on potentially contaminated land?  Do not panic: the NES Soil purposefully casts a wide net for obvious reasons.  You will be required to investigate further, and will probably need a soil contamination expert to assist, and to test the soil to look for contaminants such as arsenic, cadmium and lead, and whether these are above human health guidelines.

What if there is a problem? Still do not panic: soil contamination experts or experienced consultants will be able to guide you through what the contamination means, and what response is required.  You may need to obtain a resource consent from the District Council, who will look at the appropriate response, including management of the site, or steps to remediate.

An additional regulatory layer is never welcome, but, ultimately, the NES Soil is there for a good reason.  Awareness of obligations and spotting issues early are the key to managing any development, and the NES Soil, although new, is no different.

Nick Swallow is an environmental lawyer at Holland Beckett.

Note: the NES Soil, and contaminated land in general, can be a complex issue.  This article is a summary only, and does not consider all contamination issues or obligations.  It is not intended as legal advice.