Environmental Planning and Assessment Act 1979 No 203
Current version for 14 May 2020 to date (accessed 29 May 2020 at 13:21)
Schedule 6
Schedule 6 Liability in respect of contaminated land
1   Definitions
(cf previous s 145A)
In this Schedule—
contaminated land means land in, on or under which any substance is present at a concentration above the concentration at which the substance is normally present in, on or under (respectively) land in the same locality, being a presence that presents a risk of harm to human health or any other aspect of the environment.
contaminated land planning guidelines means guidelines notified in accordance with clause 3.
planning authority, in relation to a function specified in clause 2, means—
(a)  in the case of a function relating to a development application—the consent authority (or a person or body taken to be a consent authority), and
(a1)  in the case of a function relating to an application for a complying development certificate—the council or accredited certifier to whom the application is made, and
(b)  in the case of any other function—the public authority or other person responsible for exercising the function.
2   Exemption from liability—contaminated land
(cf previous s 145B)
(1)  A planning authority does not incur any liability in respect of anything done or omitted to be done in good faith by the authority in duly exercising any planning function of the authority to which this clause applies in so far as it relates to contaminated land (including the likelihood of land being contaminated land) or to the nature or extent of contamination of land.
(2)  This clause applies to the following planning functions—
(a)  the preparation or making of an environmental planning instrument, including a planning proposal for the proposed environmental planning instrument,
(b)  the preparation or making of a development control plan,
(c)  the processing and determination of a development application and any application under Part 3A or Division 5.2,
(d)  the modification of a development consent,
(d1)  the processing and determination of an application for a complying development certificate,
(e)  the furnishing of advice in a certificate under section 10.7
(f)  anything incidental or ancillary to the carrying out of any function listed in paragraphs (a)–(e).
(3)  Without limiting any other circumstance in which a planning authority may have acted in good faith, a planning authority is (unless the contrary is proved) taken to have acted in good faith if the thing was done or omitted to be done substantially in accordance with the contaminated land planning guidelines in force at the time the thing was done or omitted to be done.
(4)  This clause applies to and in respect of—
(a)  a councillor, and
(b)  an employee of a planning authority, and
(c)  a Public Service employee, and
(d)  a person acting under the direction of a planning authority,
in the same way as it applies to a planning authority.
3   Contaminated land planning guidelines
(cf previous s 145C)
(1)  For the purposes of clause 2, the Minister may, from time to time, give notice in the Gazette of the publication of planning guidelines relating to contaminated land and that a copy of the guidelines may be inspected, free of charge, at the principal office of each council during ordinary office hours.
(2)  However, the Minister cannot give notice under subclause (1) of the publication of contaminated land planning guidelines unless—
(a)  those guidelines are based (either wholly or partly) on draft contaminated land planning guidelines that have been publicly exhibited, for a period of at least 28 days, in such manner as may be directed by the Minister, and
(b)  the Minister has considered any written submissions made within the specified public exhibition period in relation to those draft guidelines.
(3)  A copy of the guidelines must be made available for public inspection, free of charge, at the principal office of each council during ordinary office hours.
(4)  For the purposes of this Schedule, contaminated land planning guidelines—
(a)  enter into force on the day on which their publication is notified in the Gazette, and
(b)  cease to be in force on the day on which the publication of new contaminated land planning guidelines is notified in the Gazette in accordance with this clause.